Compliance court filings

C. 1 F!^ JOHN W. WALKER SHAWN CHILDS John W. Walker, P.A. Attorney At Law 1723 Broadway Little Rock, Arkansas 72206 Telephone (501) 374-3758 FAX (501) 374-4187 FILED U.S. DIS FRICT COURT EASTERN DISIRICI ARKANSAS SEP 2 4 2002 JAMES W. McCORfviAGK. CLERK By
. September 23, 2002 i-OE-COUNSEL ROBERT McHENRY, P.A. DONNA J. McHENRY 8210 Hendesson Road Little Rock, Arkansas 72210 Phone: (501) 372-3425 F.ax (501) 372-3428 Email: mchenryd@swbell.net Honorable Judge William R. Wilson United States District Court 600 West Capitol, Suite 423 Little Rock, AR 72201 Re: LRSD v. PCSSD, et al. Case No. LR-C- 82-866 received SEP 2 4 2002 desegregation MOMnOBlMB Dear Judge Wilson: Today we filed a motion for reconsideration. We found several errors in it and wish to correct them. We are hand delivering a substituted Motion for Reconsideration to the Court. The substitute motion does not alter or modify the substance of the motion filed today. It has been hand delivered to Judge Ray, the Little Rock School District counsel, the ODM and other counsel. Sincerely, -<fohn W. Walker f JWW:js Enclosure- Motion for Reconsideration cc: United States District Court Clerk All Counsel of RecordRECEIVED SEP 2 4 2002 OmCEOF DESEGREGATION MONITORING IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT y. NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO.1,ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL filed eastern^', SEP 2 4 2002 JAMES w. McCormack, CLERK Dtp CLERK PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS JOSHUA INTERVENORS MOTION FOR RECONSIDERATION The Joshua Intervenors respectfully request the Court to reconsider the following findings of fact and conclusions of law which it has reached. In making this request, Joshua has been time limited because of the exceeding length of the Courts Opinion and the fact that the Court has sought to address issues that were not the subject of the evidentiary presentation for which the Joshua Intervenors had the burden of proof. Joshua notes that the subject of the hearings, as determined by the Honorable Susan Webber Wright, then presiding Judge of this case, was for Joshua to present the areas of its greatest strength from among the various objections which Joshua had made to the Compliance Report of March 15, 2001. The Court did not indicate that she would allow Joshua to present evidence on matters other than those which were the subject of the hearing before the Court. We make this notation because the successor Court Judge, the Honorable William R. Wilson, has faulted Joshua for not presenting evidence beyond the issues on which evidence was taken. Joshua also notes that there was no issue that Joshua assumed the 1burden of proof upon with respect to Joshuas obligations and undertaking with respect to compliance. Joshua had no power to impose any particular compliance upon the school district. Furthermore, Judge Wright made it clear that the agreement between the State of Arkansas with respect to the loan forgiveness of the $20 million dollars which was loaned by the Arkansas Department of Education to the Little Rock School District was not to be the subject of these hearings. Her reasoning was that the matter was premature because all the parties to that agreement were not before the Court, Joshua had not signed off upon it and that it had nothing to do with whether or not Little Rock had substantially complied with meeting the requirements of the Revised Desegregation and Education Plan which the parties agreed upon in January of 1998. The Court has also addressed the issue of the involvement of the ODM with respect to the issues which were litigated before Judge Wright and Judge Wilson. The competence of the ODM, quality of the ODM: reports, the budget of the ODM and the relationship between ODM and Judge Susan Webber Wright, were not before the Court in evidentiary form. Those matters had nothing to do with Joshuas burden of proof in demonstrating that the LRSD had not substantially complied with the obligation of the Revised Desegregation and Education Plan. Nor was the issue of overall counsel fees with respect to the duration of the litigation and the payments to lawyers, and the public perception of those fees a matter of evidence to be considered when Judge Wright formulated the issues. The issue of attorneys fees has no relevance to the issue of whether LRSD has substantially complied with its obligations. The Court, Judge Wilson, has recited history regarding his perception of the fee event and made assumptions regarding those matters. In due respect to the Court, the assumptions are not valid and represent a predisposition which could only have come from previous attitudes regarding the 21 role of lawyers in this long standing case. The Joshua Intervenors were not informed at the time that this matter was reassigned to the Honorable William R. Wilson of the Courts negative attitude toward lawyers who were involved with and associated with this case. While Judge Wright may have had such attitudes, they were not expressed and do not form the basis for any judicial ruling. The attitude of the late Honorable Judge Henry Woods was well known. He disapproved of certain payments to certain counsel, i.e., counsel for Joshua and the legion of predecessor and associate counsel who were involved in this case when it was first filed as Aaron V. Cooper in 1956. I The parties are entitled, we submit, to have facts found upon the record which means a record which is developed in open Court. The fee issue is particularly sensitive because the Court has proceeded to make assumptions regarding fees and costs. In doing so, the principal erroneous finding is that the Joshua counsel, including the Legal Defense Fund counsel, were paid more than $3,750,000 for their work between 1987 and the present time. Joshua requests that the Court either delete its references to payments to counsel or afford the issue to be revisited in a manner which establishes the fact and does not further cloud public perception, a point to which the Court appears most sensitive. The Court also seems to disregard the role of Joshua because the Court makes no reference to how Joshua became involved in this case in the first place and why it was necessary for the school district to seek an interdistrict remedy in the first place. Those matters were not before the Court and we submit should be excised from the Courts Opinion. It is important to note that the late Honorable Judge Henry Woods refused to allow the Joshua Intervenors to intervene in the first place. It was His ruling that the Black plaintiffs did not need their own advocate or representative because the Court would protect the interests of the Black J Lchildren. That position was overturned by the Court of Appeals and from that point on, Joshua has been the real plaintiff seeking to validate and protect the Constitutional rights of African American children which the LRSD set out to accomplish through counsel who have since been discharged.^ With those points in the foreground and in context, Joshua respectfully asks the Court to reconsider its lengthy Memorandum Opinion of September 13, 2002 with respect to issues which were not before the Court or for which the Court may have made mistakes. 1. On page 2, the Court indicates that the Settlement Agreements of 1989 were to be implemented under the supervision of. . . the Office of Desegregation Monitoring. We believe the terminology to be inappropriate because Judge Wright never entered an Order determining the ODM to be the supervisor of any district. Furthermore, there is no evidence that the ODM ever performed in that role. 2. As stated preliminarily. Judge Wright required Joshua to develop the facts surrounding what Joshua believed were their strongest grounds for challenging the school districts request for release from Court supervision. The Court did not afford LRSD the opportunity to establish its case because the burden of proof rested with the Joshua Intervenors. Accordingly, Joshua requests that any facts that were found beyond the submitted grounds identified as subject areas for evidentiary hearings should be excised. In this respect, there was no burden imposed upon Joshua to demonstrate its own actions or conduct and no party requested that Joshua make such a demonstration. Moreover, the Agreement did not call for such a demonstration. The record will reflect that the District hired Philip Kaplan, P.A. Hollingsworth, Janet Pulliam and their associates to pursue the interdistrict litigation which resulted in the 1989 Settlement Agreement but which Settlement Agreement was reached without those counsel. 43 The Court notes on page 7 the role of Judge Wright with respect to Her supervision of this overall case. The Court omits, however, reference to the fact that the LRSD filed a motion seeking to have Judge Wright recused from the case. Although she reflised to recuse, her withdrawal made the recusal issues moot for purposes of appeal. The Court appears to have adopted LRSDs reasoning set forth in its motion for recusal when it addresses the role of the Office of Desegregation Monitoring. We believe that is inappropriate, with all deference to the Court, and we believe that it tends to denigrate the significance of Judge Wrights work in seeking to implement through use of the ODM the dictates of the 8"' Circuit. 4. When the ground rules were set by Judge Wright, she indicated that the Joshua Intervenors should present nonciimulative evidence regarding the areas which Joshua most strongly regarded from the among the many areas to which it objected. Page 7, footnote 12. By ruling that cumulative evidence would be disallowed, the Court narrowed the hearing time and the presentation of evidence. The focus of the Court was upon brevity and substance. The successor Court agreed to follow the procedure set forth by Judge Wright. 5. In footnote 15, page 9, the Court notes that this action was filed on November 30, 1982, but it later gives the impression that Joshua counsel have been involved in this case since that time. Joshua requests that the Court, if it must address the history at all again, acknowledge that Joshua did not participate before the Honorable Henry Woods in the liability phase of the case as it is now styled and it only intervened at the remedy stage in 1987. Although this matter is not the subject of the evidentiary hearings, the Court may make this correction by reference to the docket entries and by reference to the Court of Appeals Decision which allowed Joshua to intervene for purposes of remedy. Joshua further notes that the 1989 Settlement Agreement 5effectively merged the captioned case with, inter alia, Clark v. The Board of Education of the Little Rock School District. Clark was the continuation of Aaron v. Cooper. Accordingly, this is a 46 year old case rather than a 20 year old case because the liability rulings of Clark remained and because, despite the beliefs of the late Judge Bill Overton, there was never a determination that the LRSD had achieved unitary status. 6. In footnote 30, page 16, the Court indicates that the claims for relief and remedies differed from those being sought in Oark. Joshua requests that the Court clarify those differences for as Joshua reads Judge Woods later Opinion, Judge Woods, himself, found the school districts to be faulted for both interdistrict and intradistrict violations of the rights of African American children and he determined that consolidation with a resulting desegregation plan for the consolidated district would be necessary. Judge Woods appointment of Special Master Aubrey McCutcheon is not mentioned. Mr, McCutcheon made findings during the remedial process that the districts were continuing to implement their policies by engaging in practices which tended to discriminate against African American school children. We believe that if history is to be written it cannot be fair unless the myriad hearings and other developments before Mr. McCutcheon are placed into perspective Mr. McCutcheon is a necessary connection to legacy of Judge Henry Woods who the Court acknowledges to be the Courts mentor. 7. In footnote 47, pages 26 and 27, the Court makes reference to the evolution of the ODM and its budget. That matter was not before the Court. While Judge Wrights approval of the ODM budget is a matter of public record, we believe the Court may wish to excise these figures because they are inaccurate. Joshua is aware that the ODM budget was never fully spent. Joshua submits that the Court may wish to readdress this issue also because Judge Wright 6approved the budgets and the manner in which Your Honor treats the budget seems to be at least an implicit criticism of Judge Wrights actions and of the Court of Appeals for requiring the creation of the office in the first place. We submit that the ODM and its budget are not fair issues for the instant proceedings and that the Courts attitude regarding the merits of plaintiff s objections may be clouded by the belief expressed that too much money has been spent on the professional group. In making the request tor the reconsideration on this point, we note that all of the governmental parties have resisted in one form or another the ODM activities. We also note that the Court may be signaling that it wants to end the role of the ODM as that role was established and created by the 8" Circuit. There is no evidentiary basis for doing that or for allowing that inference to publicly flow. On many occasions, Judge Wright commended the ODM work as being useful, helpful and even important in helping the districts achieve desegregation goals. 8. On page 38, the Court notes that on December 27, 1996, Judge Wright held that LRSD would benefit from a temporary hiatus from monitoring. We have searched the record and do not find that she ever lifted that Order. Accordingly, LRSD has not been monitored as contemplated since 1997. Instead, it has been in advisory position to the LRSD. The Court has to also note with reference to the budget of ODM which it set forth on page 27 that monitoring for LRSD when done by the ODM, a 35% cost for LRSD, would have been approximately $250,000 per year. There surely cannot be an inference that Joshua was to take over the role of ODM with respect to monitoring at a rate of approximately $49,000 per year, a point the Court refers to at least five times. (Pages 39, 42, 43, 88 and 90). 9. On page 38, the Court heads a discussion the perplexing final resolution of Joshuas 7request for still more attorneys fees from LRSD Joshua requests the Court excise this section for several reasons. First, it indicates a bias or hostility toward Joshua counsel. Second, it implies
ests that the terms of the Settlement were not made collusion between the lawyers. Third, it suggi known to Judge Wright, a conclusion not supported by any evidence. Fourth, it complains unfairly that a matter on appeal should not be resolved by the parties. The Court criticizes an Agreement without evidence about, or without inquiring into, it. The implication that LRSD and Joshua entered into an attorney client relationship suggests professional misconduct on the part of the attorneys. Finally, there is nothing to indicate that for the monthly amount of $4,000+ Joshuas counsel agreed to undertake all the monitoring aspects, including the ODMs role, of LRSDs implementation of the plan. The Court takes issue with Joshua counsels approved 1997 hourly rate of $250. Nonetheless, counsel has been awarded even greater fees than that as was His Honor awarded greater fees while in private practice. Surely, the Court understood that Joshua did more than 16 hours per month in monitoring this case. There is no record to establish this fact, however, and if it is important for public perception or otherwise, Joshua is prepared to demonstrate the hundreds of meetings held with school district officials during the three year period
numerous meetings with the ODM
public confrontations during monitoring occasions where Joshua counsel were threatened with arrest and where because of the persistence and vigor of Joshuas monitoring, the district revised its policies. We, therefore, believe that it is important for the Court to address the issue by hearing, affording appropriate and reasonable time for developing the issues, or, that the matter be removed from the Courts Opinion because it is based only upon speculation and conjecture. Joshua notes here that the process requires lawyers. For instance, Steve Jones, representing the NLRSD and Sam Jones representing the PCSSD basically 8sat in Court throughout these proceedings and were paid fees and costs while Joshua counsel have not been paid a dime. But the process affords the districts the right of counsel and the districts have had no reluctance in paying their counsel on a contemporaneous basis and they are not held to public or Court contempt for being paid. .In page footnote 58, the Court guesses that all attorneys have been paid at least $8 million dollars. A guess is inappropriate for a Court, we submit, when the facts are more easily ascertainable and the facts establish that the payment for Joshua in 1990 represented payments for 34 years of work and costs during that time. There is no estimate for the amounts which the districts paid their counsel to forestall desegregation before 1990. On the other hand, this issue has already been addressed and we submit has no place in this Opinion because it does not contribute to the issues which the Court heard. Undersigned counsel Walker does not accept the Courts conclusion that he has directly benefitted from the perpetuation of this case. On the other hand, the three districts have received almost one billion dollars from the State of Arkansas since 1990 because of the various actions undertaken by counsel. Careful inquiry by the Court would disclose that the annual desegregation amounts from the State to the three school districts is in the range of $50 million or more per year. Were this a contingent fee case, plaintiffs counsel would have indeed benefitted. 10. The Court makes reference on page 46 to the achievement disparity goals approved by the Court of Appeals as being unreachable citing the testimony of Drs. Walburg and Armor which was given in 1996. That testimony came after the original Settlement Agreement in 1989 and then preceded the 1998 Settlement Agreement. Accordingly, whatever views Walburg, Armor and even Judge Wright had about the elimination of the achievement gap, the parties 9agreed to address it in the manner set forth in the Plan. The Courts comments regarding Walburg and Armor are inapposite to the hearing which the Court held and should play no part in the Courts ruling. 11. On pages 47 and 48, the Court refers to the failure of objection by the ODM and Joshua to the Interim Compliance Report. There is no record basis for this, i.e., no witness testified to this effect and there is no evidence that Joshua was silent at any time. The only evidence is that Joshua was continually involved and seeking to be involved in the devisation of policies and procedures and was continually meeting with district officials regarding compliance issues. See Court Exhibits 553 through 569. 12. On page 48, the Court chastises ODM for its report of disciplinary sanctions which was filed on June 14, 2000. The report was made to Judge Wright before she relinquished her jurisdiction and before the March 15 report seeking release from Court supervision was filed by LRSD. She was aware and there are many cites in the record to reflect that ODM presented its report in such a way as to inform the district of the facts it found and to make recommendations regarding those facts within the context of discussions which followed subsequent to the submissions of the reports. Had Judge Wright found criticism with the ODM reports, we believe the Court was obliged to share those criticisms with the parties prior to LRSD having filed its report seeking relief from Court supervision. See pages 48 through 50. On page 49, the Court acknowledges that the March 15 report of the school district failed to adequately address the disproportionality of African American student discipline. The report is not evidence, as Mr. Chris Heller acknowledged. This failure by itself demonstrates that the issue of discipline was not ripe for objection or release at the time the report was made. If the data 10 were not available and were not presented there would be no basis for an objection from Joshua regarding the matter. ODM should not be faulted, nor should Joshua, for failing to object to data which did not exist at the time. 13. On pages 52 through 54, the Court notes that Joshua did not present evidence or arguments that LRSD was not in substantial compliance with its obligations regarding faculty and staff, student assignment, special education and related programs, parental involvement, and school construction and closing. The Court had previously instructed Joshua not to present any of that evidence. The Court now states that Joshuas failure to present any of that evidence requires a finding that they have abandoned those arguments. Joshua finds it incongruent for them not to be allowed to present any evidence on certain matters and upon compliance with a no evidence presentation then receive a finding that they abandoned their position. Surely, the Court will not hold it against Joshua when it did not present evidence that the Court refused to let in in the first place. 14. On page 58, the Court appears to chastise Joshua counsel for never raising a compliance issue under Section 8.2 of the Plan. The Plan did not require Joshua to raise the specific compliance issue in order for them to oppose release from Court supervision. Furthermore, as pointed out above, there was no place in this hearing on the issues as formulated for this issue to be addressed. Furthermore, there is much evidence that Joshua regularly brought matters of compliance to the attention of the school district administrators. See Court Exhibits 553-569. 15. The Court interprets footnote 2 of the Revised Plan (Opinion page 60) as not being the intention of the parties to have the remediation goal fully achieved within three years. 11Joshuas evidence did not say that it did. For Joshuas evidence was that certain goals were to have been frilly met while others would be ongoing. Surely, the goal of remediation of achievement disparities would be ongoing but elimination of disparities in discipline need not be, for example. The Court makes an assumption regarding the reason for this footnote. There is no basis for the assumption from the record. 16. In footnote 67, page 60, the Court seems to be uncomfortable with the practicality of the goals in the 1990 Plan regarding achievement disparities. Judge Wright also had some discomfort with that goal as previously noted but the achievement goals were agreed to and. contrary to the opinion of the Court, they must be implemented. The question is not whether they should have been agreed to by the LRSD, for they were, but whether they must deliver on those goals or promises. There is a presumption that there is a correlation between student achievement and money expenditures by school districts. Twelve years after the money began to flow and between one half billion and a billion dollars more spent in this district than which otherwise would have been spent, the achievement disparities remain. The only conclusion to be drawn is that the substantial monies expended were not used for the purpose of remediating achievement disparities between African American and white students The beneficiaries of the monies have primarily been white students who have seen their achievement rise in ways to cause the gap to remain if not increase between and their still less fortunate brethren. 17. Beginning on page 63, the Court makes an analysis regarding the Green factors. We submit that the Green factors do not apply to this Settlement Agreement and that those factors should be excised. The Court takes the position that LRSD went beyond what it was required to do and voluntarily assumed desegregation obligations. We submit that these were 12 not voluntarily entered into, they were the result of negotiation brought about by the strength of the Joshua litigation position They constitute benefits to the class of minority children which were bargained for by their counsel. The district was not doing the children a favor
rather, it was meeting an obligation which has been unaddressed during the 46 years of this litigation. 18. On page 72, the Court emphasizes that LRSD has never been adjudicated to be a constitutional violator. We ask that the Court reconsider that position if for no other reason than that the settlement did not address fault. The Court discusses Judge Overtons Opinion and makes reference to the appellates decision affirming Judge Overton at 705 F.2d 265. The Court of Appeals approved Judge Overtons Decision because the Plan before the Court represented the school boards attempt to temporarily reorganize attendance patterns while the school board pursued longer ranged plans to ensure an integrated school system citing this case. In other words, had this case not been filed, the Court of Appeals Decision arguably would have been otherwise. On page 74, the Court noted that LRSD operated under the 1990 Settlement Plan for 8 years, a long time. The Court fails to note that during that long time Judge Wright found considerable disenchantment with the manner of operation and even required the school board members to come to Court to hear the evidence on many occasions. The Court even found the school district to be in contempt during this time. The Court disregards that history and seeks to demonstrate that LRSD has been a model of compliance during the Judge Wright years. That simply is not the case. This Court recognized as much on pages 30-32 of its own Opinion. The Court is requested to explain on the one hand the findings of Judge Wright and on the other hand its compliments of the district for these 8 years. 19. On pages 77 through 85, the Court appears to take issue with the concept that LRSD 13specifically agreed to narrow the achievement gap between African American and other students. This lead the Court to impose an obligation upon Joshua to demonstrate that minority student achievement was a vestige of de jure desegregation. The Court thus imposed a liability concept upon Joshua during the hearing without any notice and without any cause. The Settlement Agreement is a remedy and as such may address issues other than those for which there has been a specific violation. But when the Settlement Agreement is approved by the Court it becomes the law of the case and the parties do not have to readdress at each hearing the underlying basis for the remedy being provided. 20. On page 87, the Court makes a finding of fact (No. 3) that Joshua did not pursue the compliance issues by use of the correct procedures before objecting to the report as a whole. As stated before, Joshua was not obliged under the plan to do so. 21. In addressing the findings of fact pages 87 through 160, the Court appears to have adopted the LRSDs proposed findings. While the Court has great discretion, we make the following notations inter alia: a) on page 87, the Court speculates regarding resolution between Joshua and the school districts
b) the Court speculates that Dr. Lacey would take appropriate action if she perceived any race based treatment despite the absence of any record of her past actions on this issue, page 93
c) on page 94, the Court found that since 1989, LRSD had a good record of acting in good faith (see paragraph 18 supra)
d) on page 96, the Court accepted the belief by Dr. Linda Watson that both Joshua 14e) f) g) h) i) J) k) and ODM were provided with copies of a compliance plan and did not require any evidence
on page 96, the Court without any record basis, concluded that Joshua counsel and staff have free access to LRSDs offices and schools and routinely received copies of any requested documents
on page 100, the Court excuses the districts failure in excluding Joshua from planning and other meetings that the district had regarding compliance
on pages 103 through 107, the Court does not address the elimination of disparities as being intended by the Plan
rather, the Court addresses overall 1 reduction in suspensions where the racial disparities remain
on page 106, the advisory ODM Report is criticized by His Honor with respect to discipline but Judge Wright did not make the same criticism. Had she done so, a duty to address the issue would have been created
on page 109 a suspension index was created without any explanation (see finding 30), i.e. no witness explained it. The Court accepted the calculation by LRSD that there was no diminishing of disparity in discipline between 1997 and 2000
the Court on page 1 10 imposed upon Joshua a burden to prove that disproportionality in discipline was a result of racial discrimination. Joshua submits that that is the wrong legal standard to be applied under the law of this case. The issue is relief, not causation
on page 111, the Court disregarded the incidents of discrimination presented in 151) m) n) o) P) discipline. (See footnote 108) In doing so, the Court disregarded the admonition by Judge Wright not to present cumulative evidence regarding any matter and then held that the presented incidents were too isolated to allow judgment regarding the entire school system
on page 112, the Court may wish to reconsider the word probable in finding 38 in discussing the testimony of Dr. Watson. A review of her testimony establishes that environmental factors may be - not probably were the explanation for racial disproportionality
on page 113, the Court notes that Dr. Watson indicates that African American teachers suspended African American students more than white teachers. That appears to be a finding of racial treatment by African American teachers toward African American students. This establishes continuation of systematic discrimination toward African American students as well as perpetuation of disparities
on page 115, at footnotes 111-112, the Court seems to condone disparities in sports activities by noting on page 1 16 that students tend to gravitate toward sports that they have grown up playing. That in itself we submit is racial, i.e., whites-golf, tennis, soccer
blacks - football, basketball and track
on pages 116-117, in addressing the testimony of Ray Gillespie, the Court does not address the inferences to be taken when white coaches publicly mistreat Black athletes nor the reasonable perceptions which are influenced by those actions
on page 118, the Court in finding 9, accepts a means test for participation in 16extra-curricular activities but this flies in face of the reality that most African American children in the LRSD - in contrast to its white students- cannot meet the means tests imposed
q) with respect to advanced placement courses, the district has increased the enrollment of white students to a point to where the preexisting disparity has been extended. The programs undertaken by the district which are cited by the Court are minuscule. For example (SMART involved a summer number of 200 pupils and Teachers of Color could only involve six teachers per year in being prepared for AP. This program was started in January, 2001, less than two months before the Report herein), r) the Court disregarded the testimony of Jason Mercer who presented multiple incidents of unfair treatment at famed Little Rock Central High School and the Court entirely disregarded the testimony regarding of parent Romona Hortons travails regarding her precocious children who were also enrolled at Little Rock Central High School, s) the Court accepts a means test for participation in the University Studies Program despite the obvious conclusion that it will disqualify the great preponderance (90%) of African American students who attend Hall High School. The Court also concluded that in one instance, LRSD solicited a private donation to pay tuition for an African American student to take a course offered under the University Studies Program. The testimony does not identify that the race of that student. The Court is requested to correct this finding
17t) with respect to counseling services, finding no. 24, page 133, the Court may wish to revisit this finding because it seems at odds with Ms. Watsons testimony
u) with respect to academic achievement, the Court notes the obligation of the LRSD to be to approve the academic achievement of African American students. The issue is not simply to improve the achievement of African American students, rather, it is to bring their achievement levels to a range within reasonably proximity of the achievement levels of white and other students
v) with respect to page 146, finding no. 16, there is no evidence of what Joshua counsel knew. Indeed, the 8"' Circuit said that the parties should not retreat from the concept of eliminating the achievement gap
and w) on page 114, finding 18, the Court again speculates regarding the loan provision forgiveness by the State of Arkansas toward LRSD. The Court then goes ahead and gives LRSD two more years in order to comply with the State agreement without there being joinder of, or a hearing upon the issue. The Court faults Joshua for not raising that issue but fails to acknowledge that when it was raised by Joshua, Judge Wright chose not to address it for the reasons set forth on pages 1 and 2, supra. This finding was not made upon any evidence regarding the Joshua objections to LRSDs Motion for Release from Court Supervision. CONCLUSION The Joshua Intervenors respectfully submit that there are compelling reasons for the Court to revisit the record in order to determine whether the Courts Findings of Fact and Conclusions of Law are supported by the evidence presented during the hearings before Judge Wright and His 18Honor. We also note that it is appropriate for the Court to again consider the context of the evidentiary presentations and withdraw its conclusions regarding those areas of compliance that the Court did not allow evidence to be developed regarding'g- Respectfully submitted, Robert Pressman, Mass Bar No Joh^V^Walker, AR Bar No. 64046 22 Locust Avenue Lexington, MA 02421 (781) 862-1955 IN W. WALKER, P. A. 1723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501)374-4187(Fax) J Rickey Hicks, AR Bar No. 89235 Attorney at Law Evergreen Place 1100 North University, Suite 240 Little Rock, Arkansas 72207 (501)663-9900 19 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been sent L prepaid to the following counsel of record, on this day of F ncfU.S 4,2c S. Mail, postage 2002: Mr. Christopher Heller FRIDAY, ELDREDGE & CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Steve Jones JACK, LYON & JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Sam Jones ' WRIGHT, LINDSEY & JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 Mr. Richard Roachell ROACHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 John^. Walker 20 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS OCT 0 1 2002 JAMES W CORMACK, ERK LITTLE ROCK SCHOOL DISTRICT, Plaintiff, vs. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al.. Defendants, MRS. LOREN JOSHUA, et al.. Intervenors, KATHERINE KNIGHT, et al.. Intervenors, * * * A * * it * ie ii k * 4:82CV00866 RECEIVED OCT - 3 2002 OFFICE OF DESEGREGATION MONITORING ORDER Attached is a copy of a letter from Mr. Walker dated October 1, 2002. I presume it should be treated as a motion of some kind. Accordingly other counsel of record may respond within the time permitted by the Federal Rules of Civil Procedure. IT IS SO ORDERED. Dated this 1day of October, 2002. U ED S' ES DISTRICT JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE AND'OR CoY.__ 6 8 0OCT. 1.2002 11:12AM JOHN M WALKER PA" NO.667 p.2 John W. Walker^ P.A. Attorney At Law 1723 Broadway Little Rock, Arkansas 72206 Telephone (501) 374-3758 FAX (501) 374-4187 JOHN W. WALKER SHAWN CHILDS October 1,2002 OP COUNSEL ROBERT McHENRY.PJL DONNA J McHENRY 3210 Hendeoison Hoad Little Rock, Arkansas 72210 Phone (5OI) 372-342B Fax (5O1) 372-8428 Email: mcheniyd^wbelLnet Honorable Judge WSliam R. Wilson United States District Court 600 West Capitol, Suite 423 Little Rock, AR 72201 Re: Little Rock School v. Pulaski County School Case No. 4:82CV00866 Dear Judge Wflson: On page 172 of your Order of September 13, 2002, you determine a compliance remedy with respect to the Joshua Intervenors, Section D. You also require the ODM to monitor LRSDs compliance with Section 2.7.1. May I bring to your attention that the remedy being inposed is not preceded by any court order determining and defining the parameter of Joshuas monitoring. Those issues were not before the Court. The Court now determines that Joshua must monitor and must immediately bring to the LRSDs attention all problems that are detected as the court has determined those problems to be. In doing so, the Court seems to impose a greater burden upon Joshua than it has imposed upon the Office of Desegregation Monitoring. I, therefore, would like to request that the Court define the nature of the monitoring that it expects of Joshua, i.e. access to information by Little Rock, cost of production of such information, access to staff responsible for fulfilling the obligations (must this be done in writing with communication directed to LRSD counsel), and so forth. I believe that it would be appropriate for the Court to spell out the obligations which it now imposes upon Joshua and the legal basis therefor in view of the feet that the remedy defined was not sought by LRSD or any party. I also note that LRSD is not required to inform Joshua of anything set forth on pages 170 through 172 except to provide a compliance report on or before March 15,2004. I must also object to Courts imposing monitoring requirements upon Joshua that were contemplated to be the responsibility of the ODM. The Courts comments indicate that it does not forsce or require a continued responsibility for monitoring of the intensity which the Court of Appeals for the 8* Circuit required. In this respect, we note that the Court created the ODM and expected the ODM to carefully monitor on a daily basis, fiill-time, the activities of the Little RockOCT. 1.2002 11:12AM JOHN W WALKER P A NO.667 p.3 Page 2- Letter to Judge Wilson October 1,2002 and other school districts. By placing the responsibility that you appear to place on Joshua, unless clarification otherwise provides, the Court is shifting the required monitoring from the ODM to Joshua. We do not believe that to be fair or reasonable. Before your final order is entered, and becomes appealable, I respectfully request a hearing on this matter so that an appropriate record on the issues of the role of ODM monitoring and Joshua monitoring may be fully developed. Sincerely, W. WalkCT JWW
js cc: All Counsel of Record Ms. Ann MarshallIN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1,ETAL RECEIVED DEFENDANTS MRS. LORENE JOSHUA, ET AL OCT -8 2002 INTERVENORS KATHERINE KNIGHT, ET AL OFRCEOF DESEGREGATION MONITORING INTERVENORS PLAINTIFFS RESPONSE TO JOSHUA INTERVENORS MOTION FOR RECONSIDERATION AND MOTION FOR NEW TRIAL Plaintiff Little Rock School District (hereinafter LRSD) for its Response to Joshua Intervenors (hereinafter Joshua) Motion for Reconsideration and Motion for New Trial states: The LRSD will respond to each numbered paragraph of Joshuas Motion for Reconsideration in turn. 1. The Courts use of the term supervision on page 2 its September 13, 2002, Memorandum Opinion (hereinafter Opinion) was appropriate. It is common for a school district implementing a court ordered desegregation decree to be referred to as being under court supervision. See Freeman v. Pitts. 503 U.S. 467, 471 (1992)(The DCSS has been subject to the supervision and jurisdiction of the United States District Court for the Northern District of Georgia since 1969 . . . (emphasis supplied)). The Office of Desegregation Monitoring (ODM) acted under the authority of the Court to supervise the LRSD. 2. Evidence related to Joshuas failure to raise compliance issues during the term of the LRSDs Revised Desegregation and Education Plan (hereinafter Revised Plan) was relevant to the Boards good faith, to assist the Court in interpreting the Revised Plan, and to the Boards estoppel defense.3. The ODM works for the Court, and it is entirely appropriate for the Court to define its role and for the Court to take into account the LRSDs position with regard to ex parte contact between the Court and ODM. 4. Joshua cannot blame their failure to come forward with evidence on the Courts focus on brevity and substance. In any event, Joshua agreed to narrow the issues and the time limits imposed by the Court and cannot now be heard to complain. See Tr. Dec. 11, 2001, pp. 36-37. 5. The LRSD denies that footnote 15 on page 9 gives the impression that Joshua counsel have been involved in this case since 1982. The record is clear that Joshua intervened only after the LRSD prevailed in this case. While the 1989 Settlement Agreement did also resolve the Clark and Cooper cases, the Court is correct that this is a 20 year-old case. 6. The Court correctly noted that the claims for relief and remedies sought differ in the present case from Clark. Clark was simply a continuation of the Cooper case filed in 1956 asking that an injunction be issued against continued segregation of the races in the Little Rock public school system. Aaron v. Cooper. 243 F.2d 361, 362 (8* Cir. 1957). The LRSD filed this case in 1982 seeking consolidation of the three Pulaski County school districts based on interdistrict constitutional violations by the other districts and the State of Arkansas. Sec LRSD V. PCSSD. 584 F.Supp. 328 (E.D. Ark. 1984). The LRSD denies that either the late Honorable Henry Woods or Special Master Aubrey McCutcheon found that the LRSD continued to unlawfully discriminate against African-American students. 7. The LRSD denies that the information in footnote 47 on pages 26 and 27 is inaccurate. It is entirely appropriate for the Court to evaluate and comment on ODMs productivity. Nothing in the Courts opinion suggests that the Court has violated or intends to violate the Eighth Circuits mandate. 8. The LRSD denies that the ODM has been in an advisory position to the LRSD since December 27, 1996. The ODM returned to its monitoring role at the conclusion of the 2Revised Plans transition period. See Revised Plan, 10. Nothing in the Courts opinion suggests that counsel for Joshua was to take over the ODMs monitoring responsibilities. Counsel for Joshua was obligated to monitor the LRSD based their ethical duty to their clients and their implied contractual duty to the LRSD. 9. The LRSD denies that the Courts discussion of Joshuas 1996 request for attorneys fees indicates bias or hostility toward counsel for Joshua, implies collusion between the lawyers, suggests Judge Wright did not know the terms of the settlement, complains unfairly that a matter on appeal should not be resolved by the parties, suggests that Joshuas counsel agreed to assume the role of ODM, or holds counsel for Joshua to public contempt for being paid. As to counsel for Joshuas attempt to justify the monitoring fees paid by the LRSD, the LRSD denies that counsel for Joshua attended hundreds of meetings with school District officials, that counsel for Joshua was ever threatened with arrest, and that the LRSD revised its policies because of counsels persistence and vigor. The LRSD also denies the implication that counsel for Joshua was responsible for the additional funding the three Pulaski County districts receive from the State by virtue of litigation related to the 1989 Settlement Agreement. While the discussion of professional fees is not directly related to the issues before the Court, the Court was free to include this discussion in its opinion. 10. The LRSD denies that the testimony of Drs. Walberg and Armor was inapposite to the issues before this Court. Their testimony provides the context in which the LRSD and Joshua agreed to the Revised Plan and the basis on which the Court approved the Revised Plan, both of which are relevant to interpreting Revised Plan 2.7. 11. The LRSD denies that there is no evidentiary basis for the Courts finding that ODM and Joshua did not object to the LRSDs Interim Compliance Report. Dr. Bonnie Lesley testified to this fact (Tr. Nov. 19, 2001, p. 287), and it is stated in the introduction to the LRSDs Final Compliance Report (CX 870, p. iv.). 312. The LRSD denies that the Court was required to share with the parties any criticisms it had of ODMs June 14, 2000, discipline report. The LRSDs Interim Compliance Report was admitted into evidence as CX 869. The LRSD denies that the issue of discipline was not ripe for objection after the LRSD filed its Interim Compliance Report. Dr. Linda Watson testified that ODM and Joshua were regularly provided copies of the Districts Disciplinary Management Reports. See Tr. Nov. 19, 2001, p. 83. 13. The Court is correct that Joshua failed to present any evidence that the LRSD was not in substantial compliance with its obligations regarding faculty and staff, student assignment, special education and related programs, parental involvement and school construction and closing. Joshua did not present any evidence on these issues precisely because it abandoned those arguments. See Tr. Dec. 11, 2001, pp. 36-37. Joshua cannot now be heard to complain that the Court did not allow Joshua to present evidence on those issues. 14. The Court found that Revised Plan 8.2 did not expressly require Joshua to raise compliance issues pursuant to the process set forth therein. See Memorandum Opinion, p. 89. Even so, evidence of Joshuas failure to raise compliance issues was relevant to the Boards good faith, to assist the Court in interpreting the Revised Plan, and to the Boards estoppel defense. The LRSD denies that there was much evidence that Joshua regularly brought matters of compliance to the attention of the school district administrators. 15. Footnote 2 of the Revised Plan is unambiguous, and the Court correctly interpreted the plain language of the footnote. The LRSD denies that Joshua introduced evidence that certain goals were to have been fully met while others would be ongoing. 16. The LRSD denies that the Court must presume that there is a correlation between student achievement and money expenditures by school districts. The LRSD also denies that only conclusion to be drawn from any continuing racial disparity in achievement is that the beneficiaries of desegregation funding have been white students. Joshuas argument ignores the fact that the racial disparity in achievement exists when students arrive for their first day of 4school. As Drs. Walberg and Armor explained, it would be impossible for the LRSD to eliminate the racial disparity in achievement given the current racial disparity in socioeconomic status. 17. The LRSD denies that the Court improperly refened to the Green factors. The Revised Plan constituted an agreement voluntarily entered into by the LRSD. The LRSD entered into that agreement because it believed implementation of the Revised Plan was in the best interest of African-American students, and indeed, all students in the District. 18. The Court is correct that in this case the LRSD has never been adjudicated a constitutional violator. The LRSD denies that it was held in contempt during the implementation of the 1990 settlement plan. 19. The Court correctly interpreted Revised Plan 2.7 as not requiring the LRSD to eliminate or reduce the racial disparity in achievement. Joshua sought to use the racial disparity in achievement to establish the LRSDs noncompliance with Revised Plan 2.7, and the Court correctly placed the burden of proof on Joshua to establish a causal connection between the current racial disparity in achievement and the LRSDs alleged noncompliance. 20. The Court acknowledged that the Revised Plan did not expressly require Joshua to raise an issue pursuant to Revised Plan 8 before it could object to the LRSDs final report. Sc^c Memorandum Opinion, p. 89. 21. The LRSD will respond to each subparagraph of paragraph 21 in turn: (a) The Court drew a reasonable inference from the fact that Joshua failed to further pursue these issues and from Baker Kurruss testimony that he asked Dr. Camine to work with Joshua to resolve these issues. See Tr. July 24, 2002, p. 751. (b) Dr. Lacey so testified (Tr. July 24, 2002, p. 777), and no record of past actions is required for the Court to credit the testimony of a witness. (c) Joshua points to nothing in the record which would indicate that the Courts characterization is erroneous. 5(d) In fact, Junious Babbs testified that ODM and Joshua were provided copies of the Compliance Plan and Compliance Handbook.Court. See Tr. July 5, 2001, pp. 73, 77 and 78. Moreover, ODMs August 11, 1999 report establishes that ODM received both. See pp. 39 and 40. Counsels suggestion on cross-examination that Joshua did not receive them is not evidence. See Eight Circuit Model Jury Instructions (Civil) 1.02 (2001). Thus, the only evidence before the Court was testimony that ODM and Joshua did receive the Compliance Plan and Compliance Handbook. (e) The record in this case includes motions by the LRSD after Joshua filed its objections to stop counsel for Joshua from entering the offices of LRSD staff members unexpectedly and from using the Freedom of Information Act (FOIA) to conduct discovery. Joshuas opposition to these motions provides ample support in the record for the Courts finding. (f) The Revised Plan did not prohibit the LRSD from holding meetings without Joshua being present. Thus, there was no failure for the Court to excuse. (g) The Court conectly found that Revised Plan 2.5 did not require the LRSD to eliminate or reduce the racial disparity in discipline. (h) The criticisms offered by the Court were readily apparent from the report itself, and Joshua cannot blame the Court for failing to put it on notice of these shortcomings. (0 The suspension index is a well-recognized statistic and has been explained in numerous desegregation cases. See, e^, Hoots v. Pennsylvania, 118 F.Supp.2d 577, 608 n.25 (W.D. Pa. 2000). The Court was free to accept the LRSDs calculations which were admitted into evidence without objection. Sec CX 743. (j) The Court correctly interpreted Revised Plan 2.5 as not requiring the LRSD to eliminate or reduce the racial disparity in discipline. Joshua sought to use the racial disparity in discipline to establish the LRSDs noncompliance with Revised Plan 62.5, and the Court correctly placed the burden of proof on Joshua to establish a causal connection between the current racial disparity in discipline and the LRSDs alleged noncompliance. (k) The Court correctly noted that not a single student testified that he or she had been discriminated against in the imposition of discipline. The LRSD fails to see how the Courts admonition not to present cumulative evidence prevented Joshua from calling any students to testify during the hearings on Revised Plan 2.5. (1) The Courts description of Dr. Watsons testimony is accurate given the context in which the statement was made. (m) The fact that African-American teachers suspended African-American students more than white teachers is not a finding of racial mistreatment by African- American teachers toward African-American students. (n) The Courts statement that students of all races tend to gravitate toward sports that they have grown up playing and that they enjoy does not condone racial disparities in activities. (o) The only inference to be drawn from testimony of Ray Gillespie is that the LRSD responded appropriately when confronted with allegations that white coaches mistreated African-American student athletes. (P) The Court did not accept a means test for participation in activities. The LRSD presented evidence of the steps it took to ensure that no student was denied participation in an activity due to a financial barrier, and Joshua came forward with no evidence that a single student was denied participation in an activity because of a financial barrier. (q) The Revised Plan did not require the LRSD to eliminate or reduce the racial disparity in the percentage of students taking AP courses. The LRSD has worked hard to increase the number of African-American students in AP courses, and it has done 7so. The LRSDs success cannot be diminished by Joshua characterizing the LRSDs efforts as minuscule. (r) The Court gave due weight to the testimony of Jason Mercer and Ramona Horton. (s) The Court did not accept a means test for participation in the University Studies Program at Hall High School. It is true that Dr. Lacey did not identify the race of the student for whom a private donation was sought so the student could participate in the University Studies Program. See Tr. July 24, 2002, p. 802. However, it was reasonable for the Court to infer that the student was African-American for two reasons. First, when counsel for Joshua began this series of questions, he limited the question to African- American students. See Tr. July 24, 2002, p. 801. Second, there was evidence that African-American students were more likely to be poor, and therefore, to be excluded by financial barriers to activities. See Tr. July 24, 2002, p. 602 and 624. (t) (u) The Court gave due weight to Ms. Watsons testimony. The Court correctly interpreted Revised Plan 2.7 as not requiring the LRSD to eliminate or reduce the racial disparity in achievement. (v) The Court may infer that counsel for Joshua read Revised Plan 2.7 before agreeing to it, and therefore, knew what it required. (w) The Court is correct that Joshua did not raise the issue of the LRSDs March 19, 2001, agreement with the State of Arkansas in its Opposition to the LRSDs Motion for an Immediate Declaration of Unitary Status filed May 30, 2002. WHEREFORE, the LRSD prays that Joshuas Motion for Reconsideration
that Joshuas Motion for New Trial or in the Alternative Motion for Relief from Judgment or Order be denied
that the LRSD be awarded its costs and attorneys fees expended herein
and that the LRSD be awarded all other just and proper relief to which it may be entitled. 8Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT Friday, Eldredge & Clark Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 37^=iOH------- Chrislopher Heller F:\HOME\FENDLEY\LRSD 200l\unitary-rcsponse-mot-rcconsidCT wpd 9CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on October 7, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey & Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON & JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F:\HOME\FENDLEY\LRSD 2001\iinilary-response-mot-reconsidCTwpd 10 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO.4:82CV00866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1,ET AL RECEIVED DEFENDANTS MRS. LORENE JOSHUA, ET AL OCT -8 2002 INTERVENORS KATHERINE KNIGHT, ET AL OFFICE OF DESEGREGATION MONITORING INTERVENORS PLAINTIFFS RESPONSE TO JOSHUA INTERVENORS OCTOBER 1. 2002 LETTER For its response to the Joshua Intervenors ("Joshua") October I, 2002 letter. Plaintiff Little Rock School District (LRSD) states: 1. For more than decade, Joshua has reported to the Eighth Circuit Court of Appeals and to the District Court that it was engaged in the process of monitoring LRSDs compliance with LRSDs various desegregation obligations. At one oral argument, counsel for Joshua introduced a number of Joshua monitors to the panel of the Court of Appeals. 2. The 1998 Revised Desegregation and Education Plan formalized a process for resolving any desegregation compliance problems which were discovered during the course of Joshuas monitoring. The obvious purpose of that process, which is found beginning at 8.2 of the Revised Plan, was to allow the quick resolution of any compliance issues for the benefit of both the Joshua class members and the LRSD.3. There is nothing on page 172 of the Courts September 13,2002 Order which imposes upon the Joshua Intervenors any obligations which are not contained in the Revised Desegregation and Education Plan or inherent in the class representatives and class counsels obligations to the class members. 4. The Courts September 13, 2002 Order followed weeks of litigation about issues which Joshua did not raise with the LRSD during the term of the Revised Plan. By requiring that Joshua and LRSD follow the "process for raising compliance issues" set forth in 8.2, s^. of the Revised Plan, the Court is simply requiring the parties to abide by the terms of their own agreement. 5. The LRSD can find in the Courts Order no basis for Joshuas argument that the Court has somehow imposed "a greater burden upon Joshua than it has imposed upon the Office of Desegregation Monitoring." The LRSD does not read the Courts Order as "imposing" any burden upon either Joshua or the ODM which did not exist for years prior to the Courts Order. 6. The Court should decline Joshuas request "for the Court to spell out the obligations which it now imposes upon Joshua." Nothing is required of Joshua that Joshua should not have been doing all along. The Court has simply let the parties know that in addition to 2.7.1 of the Revised Plan, their agreement with respect to the resolution of compliance issues remains viable. The Courts Order continues a sensible and efficient system for resolving compliance issues and puts Joshua on notice that objections raised for the first time on April 15, 2004 which were not raised pursuant to the compliance process could be subject to an argument that those issues have been waived. 7. The Court should require that any future requests for relief submitted by Joshua should be placed in the form of a Motion and filed pursuant to the Federal Rules of Civil Procedure and the local rules of this Court.WHEREFORE, for the reasons set forth above, Joshuas letter/motion of October 1,2002 should be denied. Respectfully submitted. LITTLE ROCK SCHOOL DISTRICT Friday, Eldredge & Clark Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501)376-2011 By:' Christopher HellerCERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on October 7, 2002. Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 P. O. Box 17388 Little Rock, AR 72222 Mr. Sam Jones Wright, Lindsey & Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Steve Jones JACK, LYON & JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 iristopher HelleiR CEIVED iCT 1 2 201)2 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS URT KAN OCT 1 1 2002 >NS, \S OFFICE OF LITTLE ROCK DIVISION DESEI iREGATION MONITORING JAMES W, By:.- - - - - - - - - ER LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. No. 4
82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. DEFENDANTS MRS. LORENE JOSHUA, ET AL. INTERVENORS KATHERINE KNIGHT, ET AL. INTERVENORS ORDER On September 24,2002, Joshua Intervenors (Joshua) filed: (a) a Substituted Motion for Reconsideration (docket no. 3678),' which asks me to revisit many aspects of the September 13, 2002 Memorandum Opinion (docket no. 3675) (Memorandum Opinion) declaring the Little Rock School District (LRSD) to be unitary with regard to all aspects of its operations under the Revised Plan (CX 871), except for 2.7.1
and (b) a Motion for New Trial or in the Alternative Motion for Relief from Judgment or Order (docket no. 3677). On October 7,2002, LRSD filed a Response to Joshua Intervenors Substituted Motion for Reconsideration and Motion for New 'On September 23,2002, Joshua filed their first Motion for Reconsideration (docket no. 3676), which contained numerous errors. The next day, September 24, 2002, Joshua filed a second Motion for Reconsideration, which corrected most of those errors. I will consider this second motion as a Substituted Motion for Reconsideration, although it was not so designated. As a matter of fact, a motion for reconsideration is not recognized in the Federal Rules of Civil Procedure. They are, however, commonly filed and ruled upon in this jurisdiction-and I will hew to this custom. AO 72A (Rev.8/82) Trial (docket no. 3682).^ After an initial review of Joshuas Substituted Motion for Reconsideration and Motion for New Trial, 1 considered summarily denying both motions on the ground that each of the arguments in support of reconsideration or a new trial is without any apparent merit. I believe that my 17 4-page Memorandum Opinion fully and accurately sets forth the relevant history of this case and that my detailed Findings of Fact and Conclusions of Law are amply supported by the record and controlling legal authority. In short, I have given this case my best shot, and, if counsel for Joshua believe I have erred, they should appeal my decision to the Court of Appeals for the Eighth Circuit. Thus, on the merits, Joshuas arguments raise nothing that warrants comment beyond my stating 1 find they are without any factual support or legal foundation. However, to the extent that a number of Joshuas arguments tend to torque the Memorandum Opinion out of shape, and are supported only by speculation and personal innuendo, 1 think it best to set the record straight. First, Joshua suggests that I improperly faulted Joshua for failing to present evidence ^Under Rule 7.2(b) of the Local Rules, LRSDs Response to Joshuas Substituted Motion for Reconsideration was due eleven days from September 24,2002, and its Response to Joshuas Motion for a New Trial was due eleven days from September 23, 2002. Because Joshuas Substituted Motion for Reconsideration and Motion for New Trial were served on counsel for LRSD pursuant to Fed. R. Civ. P. 5(b)(2)(B) (mail) and (D) (electronic means), an additional three days must be added to LRSDs eleven days. See Fed. R. Civ. P. 6(e). Thus, LRSD had fourteen days to respond to those motions, making its Response to Joshuas Motion for New Trial due on or before October 7 and its Response to Joshuas Substituted Motion for Reconsideration due on or before October 8. As indicated previously, LRSD filed its Response to both those Motions on October 7. In a letter dated October 9,2002, Joshuas counsel asked me to strike LRSDs Response to those two motions because it was not filed within eleven days. Because Joshuas counsel overlooked Fed. R. Civ. P. 5(b) and 6(e), they miscalculated the deadline for the filing of LRSDs Response to be October 4. Therefore, their request to strike that Response is denied. -2- AO 72A (Rev.8/82) on the March 19, 2001 Agreement between LRSD and the Arkansas Department of Education (CX 548). Substituted Motion for Reconsideration at 2. To the contrary, the Findings of Fact explicitly state that: The March 19, 2001 Agreement between the ADE and LRSD is unrelated to the question of whether LRSD has substantially complied with its obligations under the Revised Plan. It is important, too, that Joshua did not raise that issue as part of its challenge to LRSDs request for an immediate declaration of unitary status. Memorandum Opinion at 149, ^117 (emphasis in original). Thus, although Joshua introduced CX 548 into evidence,^ 1 expressly did not consider it in deciding the unrelated question of whether LRSD had substantially complied with its obligations under the Revised Plan. Nowhere in my Memorandum Opinion do I fault Joshua for failing to produce evidence regarding the March 19, 2001 Agreement between LRSD and ADE--a subject that clearly was not before me in the hearings on unitary status. Second, Joshua contends that I should not have addressed the involvement of the ODM with respect to issues which were litigated before Judge Wright and Judge Wilson ... [because] the competence of the ODM, the quality of the ODM reports, [and] the budget of the ODM ... 114 were not before the Court in evidentiary form. Substituted Motion for Reconsideration at 2, 6-7, and 10. The ODM, an employee of the district court, has monitored LRSDs compliance 3 It strikes me as a little strange that Joshua introduced the March 19,2001 Agreement into evidence during the hearing on unitary status and now argues, in their Substituted Motion for Reconsideration, that the document is irrelevant to the question of whether LRSD substantially complied with its obligations under the Revised Plan. I agree that the document is irrelevant to the issue of substantial compliance, but this begs the question of why Joshua chose to introduce the document into evidence in the first place. 1 remain puzzled. 4' ODM. For the record, my Memorandum Opinion does not consider the competence of the -3- AO 72A (Rev.8/82)with its obligations under the 1990 Settlement Agreement, the 1992 Desegregation Plan, and the Revised Plan. Because the ODM works for the court, all of its budgets, as well as all of the reports it has prepared over the years, have been filed and are part of the record in this case. Historically, all of the parties and the court have used ODM reports, to the extent they were relevant, during the many hearings that have taken place since 1991. After being assigned this case in January of 2002,1 carefully reviewed the entire record. In doing so, I examined the ODMs annual budgets from 1990 to date. I was troubled by the large increases in the ODMs budget over that period of time. I was also troubled by the large sums of money that I discovered had been paid to the attorneys for both Joshua and the three school districts.^ While attorneys are unquestionably necessary in school desegregation cases, it is the school children who ultimately are disadvantaged by unnecessary or exorbitantly high litigation costs. Thus, I believe that it was entirely appropriate for me to express my views on the ODMs rapidly escalating budgets,^ which are part of the record in this case, and the total amount of money that has been paid to all of the attorneys in this case during the last ten to fifteen years. As footnote 58 makes clear, my concern is with the enormous amount of money that has been paid to the entire professional groupthe ODM, the attorneys for LRSD, PCSSD, NLRSD, and Joshua. As I thought my admonition made clear on page 44 of the Memorandum Opinion, I believe the issue of the money paid to the professional group is important because I understand the meaning of being careful with a dollar, and I expect the professional group to keep that ^In most long-running school desegregation cases that have been decided in the last ten years, courts have expressed dismay over the high cost of school litigation. I now know why. ^See Memorandum Opinion at 26-27. -4- AO 72A (Rev.8/82) important point fixed in their minds from here on out. Why Joshuas eounsel seriously contend that I should not have addressed a subject of such obvious importance is beyond me. In the same vein, Joshuas counsel argue that I should not have commented on the quality of the ODMs June 14, 2000 Report of Disciplinary Sanctions in LRSD (docket no. 3366). Joshuas counsel used that Report extensively in his examination of various LRSD employees who testified during the hearings on unitary status. Joshuas decision to use that Report, one of the Court's own documents, in his examination of witnesses on the issue of student discipline. required me to read and carefully analyze that document. In doing so, I discovered patent deficiencies which rendered the Report of little use to the court or the parties in trying to determine the cause for African-American students being over-represented in disciplinary proceedings. Thus, in my discussion of the history of this litigation (Memorandum Opinion at 47-50), I was obliged to point out the flaws in the ODMs Report of Disciplinary Sanctions. I note that Joshua does not deny those flaws-they simply object to my noting them. In my Findings of Fact on the issue of student discipline, I again commented on the ODMs Report of Disciplinary Sanctions, which was prepared for the express purpose of being used by the court in monitoring and evaluating LRSDs compliance with the Revised Plan. In light of that fact, I believe 1 would have been remiss if I had not closely scrutinized the ODMs Report in deciding whether LRSD had substantially complied with those sections of the Revised Plan dealing with student discipline. Otherwise, what is the role of the Judge? Finally, and perhaps most importantly on this point, none of my Findings of Fact on the issue of whether LRSD substantially complied with its obligations regarding student discipline were based on anything contained in the ODMs Report of Disciplinary Sanctions. Rather, my -5- AO72A (Rev.8/82) findings simply pointed out that, because the Report failed to develop a proper statistical model for evaluating the data on student discipline, its conclusions were based on pure speculationmaking the Report of no use to the court or the parties in evaluating the cause for African- American students in LRSD receiving a disproportionate number of suspensions. See Memorandum Opinion at 105-07, 24-26. Third, Joshuas counsel take general exception to my discussion of the attorneys fees that have been paid in this case during the last twenty years and particular exception to my allegedly erroneous finding that the Joshua counsel, including the Legal Defense Fund counsel, were paid more than $3,750,000 for their work between 1987 and the present time. Substituted Motion for Reconsideration at 3. The amount that Joshuas counsel have been paid, to date, in attorneys fees is a matter of public record. As pointed out in footnote 58 of my Memorandum Opinion, these attorneys fees are as follows: $3,150,000 paid to Joshuas counsel under the 1990 Settlement Agreement
$700,000 paid by LRSD to Joshuas counsel for monitoring work performed after December 12, 1990, and before July 1, 1998 (see Exhibit 7 to docket no. 3581)
and $124,861 paid by LRSD to Joshuas counsel for monitoring work performed under the Revised Plan between July 1, 1998, and January 2001 (see Exhibit 8 to docket no. 3581). Thus, based entirely on the evidence in the record, without any need for me to speculate or make assumptions, Joshuas counsel have been paid, to date, $3,974,861 in attorneys fees-this is more than $3,750,000. In footnote 58 of my Memorandum Opinion, I hazard what I admit to be a guess that. since 1990, the attorneys fees that LRSD, PCSSD, and NLRSD have paid to their own attorneys fRSDv. PCSSD, 921 F.2d 1371, 1390 (8'" Cir. 1990). -6- AO 72A (Rev.8/82)totals at least $4,000,000. Joshuas counsel clearly lack standing to complain about my guess regarding the aggregate amount of attorneys fees paid to counsel for the three school districtsan estimate that LRSD has not challenged. In light of these undisputed facts, I seriously question how Joshuas counsel can make the statement that counsel Walker does not accept the courts conclusion that he has directly benefitted from the perpetuation of this case. Substituted Motion for Reconsideration at 9. With all due respect to Mr. Walker, I am having a hard time escaping the conclusion that he has been directly benefitted by receiving millions of dollars in attorneys fees in this case. Fourth, Joshuas counsel, without citing any supporting facts, accuse me of a predisposition which could only have come from previous attitudes regarding the role of lawyers in this long-standing case
^ i 'negative attitudes toward lawyers who are involved with and associated with this case
and a bias or hostility toward Joshuas counsel.' nlO Although this should go without saying, I want to remind Joshuas counsel that, while I ruled against them on five of the six arguments they advanced, this does not mean that I harbor any bias against or hostility toward them.'' For the record, I have no predispositions, negative attitudes, or bias or hostility toward Joshuas counsel. I did indeed express dismay over the attorneys fees that have been paid to all of the ^Motion for Reconsideration at 2. Motion for Reconsideration at 3. "Motion for Reconsideration at 7. llu- The Judge must not like me is a refrain usually sung by lawyers who have just been called to the barwhen a lawsuit doesnt turn out exactly as they had wanted. Experienced lawyers generally resist the temptation to raise this claim. -7- AO 72A (Rev.8/82)attorneys in this caseI believe that was a subject that called for comment during my discussion of the long history of this case. Likewise, the concerns I expressed about LRSDs decision to pay Joshuas counsel $700,000 for performing monitoring work for which Judge Wright ruled Joshuas counsel had already been paid (docket no. 2821) and the $48,333.33 per year that LRSD agreed to pay Joshuas counsel for performing monitoring work under the Revised Plan are directly supported by detailed citations to the record'^not speculation or conjectureand also deserved to be mentioned in my review of the history of this case. As I stated in the Memorandum Opinion, counsel for both LRSD and Joshua should have done a better job of documenting the reasons for the payment of these attorneys fees and the precise role of Joshuas counsel in receiving monthly payments from LRSD to monitor its compliance with the Revised Plan. However, in reaching that conclusion, I was guided entirely by the plain facts contained in the record and not by any preconceived ideas or a bias or hostility toward Joshuas counsel. Fifth, Joshua argues that: (a) because I discuss the fact that the ODMs staff and budget have more than doubled since its creation, I am implicitly criticizing Judge Wrights actions and the Court of Appeals for requiring the creation of the office in the first place
'^ (b) I may be signaling that [I] want to end the role of the ODM as that role was established and created by the Eighth Circuit
''* and (c) 1 may be trying to infer that Joshua take over the role of ODM with respect to monitoring at a rate of approximately $49,000 per year.' ,>15 No one could fairly read the ^^See Memorandum Opinion at 33-35 and 38-44. '^Motion for Reconsideration at 6. 'Motion for Reconsideration at 7. '^Motion for Reconsideration at 7. -8- AO72A (Rev.8/82)Memorandum Opinion as stating anything within shouting distance of these three farfetched notions. As 1 repeatedly noted in my Memorandum Opinion, Judge Wright did an outstanding job of presiding over this case for eleven long years, during which time she faithfully and skillfully decided well over a thousand motions. Nowhere do I implicitly or explicitly direct any criticism toward her.'^ Likewise, my Memorandum Opinion makes it clear that I believe it was a good idea for the Eighth Circuit to create the ODM so that the district court and the Eighth Circuit could ensure that each of the three school districts complied with their many desegregation obligations. Obviously, it is important for the ODM to continue its monitoring work until each of the three school districts is declared to be unitary and released from further supervision by the court. At this point, my only concern is that the ODM operate as frugally and efficiently as possible in going forward with its monitoring of the now much less onerous single remaining compliance issue for LRSD and the desegregation obligations that remain in effect for NLRSD and PCSSD. Finally, Joshuas counsel are absolutely correct that, in my Memorandum Opinion, there surely cannot be an inference that Joshua was [to] take over the role of ODM with respect to monitoring at a rate of approximately $49,000 per year.... There is no such inference or implication. Sixth, Joshua argues that they should be allowed to present additional evidence of LRSDs alleged noncompliance with other sections of the Revised Plan. Substituted Motion for Reconsideration at 10-11. In support of this argument, Joshua alleges that the court previously '^I do not understand how counsel can possibly discern (or divine) any such criticism in the Memorandum. -9- AO72A (Rev.8/82) instructed Joshua not to present any of that evidence [on LRSDs alleged failure to substantially comply with its obligations regarding faculty and staff, student assignment, special education and related programs, parental involvement, and school construction and closing]. This is not true. It is an after-the-fact assertion. On May 9,2002,1 entered an Order (docket no. 3598) explaining in detail how 1 intended to proceed in conducting up to five days of hearings on the remaining issues Joshua had raised in their challenge to LRSDs request for unitary status. Four pages of that Order were devoted to discussing what transpired during the December 11,2001 hearing before Judge Wright, which was held to discuss the remaining grounds for Joshuas challenge to LRSDs substantial compliance with the Revised Plan. Id. at 9-12. The May 9 Order pointed out that, during the December 11 hearing, Joshuas counsel attempted to raise numerous new grounds for challenging LRSDs alleged noncompliance after they had rested their case on what they viewed as their three strongest groundslack of good faith, failure to comply with obligations related to African- American achievement, and student discipline. Judge Wright ruled that Joshua could present evidence on three remaining grounds for noncompliance: advanced placement courses
guidance counseling
and extracurricular activities. In addition, she ruled Joshua could present additional evidence of LRSDs alleged lack of good faith, but only to the extent that evidence was related to advanced placement courses, guidance counseling, and extracurricular activities. Judge Wright also made it clear that, after she had heard the evidence on these three remaining areas of alleged noncompliance, she would decide the question of unitary status. Joshuas counsel responded: Thats fine, Your Honor." (Docket no. 3597 at 36-37.) Consistent with Judge Wrights ruling during the December 11,2001 hearing, the May 9 -10- AO 72A (Rev.8/82)Order provided that I planned to conduct up to five days of additional hearings on unitary status, during which Joshua would be allowed to present evidence of LRSDs alleged noncompliance with its obligations related to advanced placement courses, guidance counseling, and extracurricular activities. In addition, I allowed Joshua to present noncumulative evidence related to: (a) LRSDs lack of good faith, but only to the extent that it was related to advanced placement courses, guidance counseling, and extracurricular activities
and (b) how LRSDs alleged failure to comply with its obligations regarding advanced placement, guidance counseling, and extracurricular activities adversely affected the academic achievement of Afiican-American students (docket no. 3598 at 13-14). I hardly see how the May 9 Order could have been any clearer in setting forth the precise ground rules regarding Joshuas three remaining challenges to LRSDs substantial compliance with the Revised Plan. Joshuas counsel raised no objection to the May 9 Order, and, after completing three additional days of evidentiary hearings on July 22-24,2002, Joshuas counsel rested their case challenging whether LRSD should be declared unitary. Under these circumstances, there is no basis for Joshuas counsel to argue that the court instructed them not to present evidence of LRSDs alleged noncompliance with numerous other provisions of the Revised Plan. Joshuas counsel agreed, flat footedly, to the ground rules for conducting the hearings on unitary status, including the six specific areas of the Revised Plan under which they challenged LRSDs substantial compliance. It is far too late for Joshua to argue that they should be allowed to engage in piecemeal litigation by raising additional grounds for attacking LRSDs substantial compliance with the Revised Plan. Again-one last time-the grounds delineated by Judge Wright and me, and agreed to by all counsel, were fully litigated. -11- AO72A (Rev.8/82)I do not know how to put it any more plainly than that. IT IS THEREFORE ORDERED that Joshuas Substituted Motion for Reconsideration be and it is hereby DENIED. IT IS FURTHER ORDERED that Joshuas Motion for a New Trial or in the Alternative Motion for Relief from Judgment or Order be and it is hereby DENIED. DATED this day / J of October, 2002. ITED STATES DISTRICT JUDGE UNITED JU THIS DOCUMENT ENTERED ON docket SHEET IN COMPLIANCE 79(a) FRcV ON 10/Il jo -12- AO72A (Rev.8/82)llECElVEr OCT 1 2 2002 OFRCFGF IltSEGREGATON MOKiTCRiJ<G IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION EAST^fSilslfeB^l OCT 1 1 2002 JAMES W, Me By
_______/ RR LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1,ETAL. DEFENDANTS MRS. LORENE JOSHUA, ET AL. INTERVENORS KATHERINE KNIGHT, ET AL. INTERVENORS ORDER In a letter dated and delivered to me on October 1,2002, counsel for Joshua requested that I modify or clarify: (a) various aspects of the compliance remedy contained in the September 13, 2002 Memorandum Opinion (the Memorandum Opinion) declaring LRSD to be partially unitary
and (b) the role of Joshua and the ODM in performing future monitoring work in this case. Later that day, I entered an Order (docket no. 3680), stating that I intended to treat the letter as a motion of some kind. In a letter dated October 9, 2002, counsel for Joshua wrote me a supplement to their October 1, 2002 letter. Attached to this Order is a copy of the October 9 letter. On October 7,2002, LRSD filed its Response to Joshuas October 1,2002 letter (docket no. 3681). Because I see no reason to await LRSDs Response to the matters raised in Joshuas 'A copy of the October 1 letter is attached to my Order. AO72A (Rev.8/82) 3 6 8 5 ssOctober 9 letter, I will proceed to address the merits of the relief requested by Joshuas counsel in both of those letters. As a threshold matter, I want to clarity how I view these two letters. On September 24, 2002, Joshua filed a Substituted Motion for Reconsideration (docket no. 3678) requesting that 1 clarify or modify many aspects of the Memorandum Opinion. Because both of Joshuas letters are seeking reconsideration of still other aspects of the Memorandum Opinion, I will treat those letters as a Supplement to their Substituted Motion for Reconsideration and address in this Order only those arguments raised in that Supplement. In the future, I think it will be best if all counsel file motionsnot lettersraising any issues that they believe require my attention. I should not be copied on general correspondence amongst counsel. First, Joshuas counsel request that I clarify the monitoring obligations the Memorandum Opinion imposed on them with regard to LRSDs compliance with 2.7.1 of the Revised Plan. I shall do so. In 1990, Joshuas counsel made the commitment to participate in a monitoring system to ensure that LRSD, NLRSD, and PCSSD complied with their desegregation obligations under the 1990 Settlement Agreement. See Memorandum Opinion at 34. Later, in approving that Settlement Agreement, the Eighth Circuit recognized that counsel for Joshua were the best defenders and guardians of the interests of their own clients. LRSD v. PCSSD, 921 F.2d 1371, 1386 (8" Cir. 1990). Between 1990 and 1998, Joshuas counsel participated in monitoring ^In a companion Order that I am entering contemporaneously with this Order, I have addressed and rejected the arguments raised by Joshua in their Substituted Motion for Reconsideration. -2- AO72A (Rev.8/82)LRSDs compliance with the 1990 Settlement Agreement and the 1992 Desegregation Plan.^ After Joshua and LRSD implemented the Revised Plan in 1998, Joshuas counsel entered into an agreement with LRSD to monitor its compliance with the Revised Plan, a task for which LRSD agreed to pay Joshuas counsel $48,333.33 per year.'* Thus, for the last twelve years, Joshuas counsel have been involved with monitoring LRSDs compliance with its desegregation obligations. In Section VILA., B., and C. of the Memorandum Opinion, I outlined the Compliance Remedy LRSD must implement in order to comply with its remaining obligations under 2.7.1 of the Revised Plan. Because I believe that Joshuas counsel have an ethical obligation and professional duty to monitor LRSDs compliance with its obligations under 2.7.1,1 provided a monitoring role for them in Section VII.D of the Memorandum Opinion. I intended for Joshuas counsel to continue to perform their monitoring role according to the same procedure they and LRSD have followed for many years in this case. One could read the October 1,2002 letter as suggesting that Joshuas counsel only intend to continue to monitor LRSDs compliance with 2.7.1 of the Revised Plan if they are ordered to do so by me. I do not believe I can force Joshuas counsel to perform monitoring duties-something that I may have mistakenly assumed they wanted to continue to do. I will leave it up to Joshuas counsel to decide if they have an ethical duty and professional obligation to ^Judge Wright ruled Joshuas counsel were not entitled to receive attorneys fees for any monitoring work performed after the Eighth Circuits approval of the 1990 Settlement Agreement (docket no. 2821). While that ruling was on appeal to the Eighth Circuit, LRSD voluntarily agreed to pay Joshuas counsel $700,000 for performing that monitoring work. See Memorandum Opinion at 33-35 and 38-44. '^See Memorandum Opinion at 42. -3- AO72A (Rev.8/82)continue monitoring LRSDs compliance with its sole remaining obligation under the Revised Plan. 1 hope Joshuas counsel resolve that question in favor of continuing their long-standing commitment to monitoring LRSDs compliance with its desegregation obligations. However, since they complain about my expressly directing them to continue monitoring LRSDs compliance with 2.7.1 of the Revised Plansomething I never expected to hearI believe I must now modify Section Vll.D. of the Memorandum Opinion to read as follows: Joshua way monitor LRSDs compliance with 2.7.1 and, //they choose to do so, they should bring to the attention of LRSD, on a timely basis, all problems that are detected in its compliance with its obligations under 2.7.1, as those obligations are spelled out in this Compliance Remedy. Thereafter, Joshua and LRSD must use the process for raising compliance issues set forth in 8.2, et seq., of the Revised Plan to attempt to resolve those compliance issues. If those efforts are unsuccessful, Joshua shall present the issues to me for resolution, as required by 8.2.5. Any such presentation must be timely. Regardless of whether Joshuas counsel continue to monitor LRSDs compliance with 2.7.1, the ODM staff most certainly will continue their close monitoring of LRSDs compliance with that section of the Revised Plan. 1 have every confidence that the staff of the ODM will carefully monitor LRSDs implementation of the Compliance Remedy I have ordered under 2.7.1 of the Revised Plan. If Joshuas counsel decide to continue with their monitoring role, which is independent from the monitoring work performed by the ODM, the preceding paragraphs of this Order make it clear that I expect them to follow the same monitoring practices they have followed for years in this case. I expect counsel for Joshua and LRSD to cooperate and work together to ensure that things go smoothly with regard to monitoring LRSDs implementation of its obligations under 2.7.1. However, if actual disputes arise regarding monitoring, 1 will be available to resolve them. -4- AO72A (Rev.8/82)Second, Joshuas counsel makes an unsupportable and speculative statement that certain unspecified comments in the Memorandum Opinion indicated that [I] do not foresee or require a continued responsibility for monitoring of the intensity which the Court of Appeals for the Eighth Circuit required. This assertion simply is not true. I will expect and require the ODM staff to work hard every day to ensure that all three school districts fully comply with all of their remaining desegregation obligations. Of course, for LRSD, these obligations are now far less onerous than they have been in the past. Likewise, NLRSD has already been declared unitary with regard to several of its original desegregation obligations. In other words, while I will expect and require the ODM staff to diligently and fully discharge their obligation to monitor the three school districts. the reality is they now have far fewer obligations. Finally, in Joshuas counsels October 9,2002 letter, they request that I conduct a hearing to clarify the role of the ODM. I find there is no need for any requested clarification of the role of the ODMmuch less for a hearing on that subject. I feature myself capable of directing the ODM staff in performing their ongoing duties as monitors. If I waiver in this belief, I may, at that time, call on counsel for suggestions. Of course, if Joshuas counsel determines that the ODM staff is not adequately discharging its monitoring duties, I would expect them to immediately file an appropriate motion. In closing, let me repeat the comment I made in my companion Order addressing the merits of the arguments made by Joshua in their Substituted Motion for Reconsideration: I have given this case my best shot, and, if counsel for Joshua or LRSD believe that I have erred, they should appeal my decision to the Court of Appeals for the Eighth Circuit. No more paper should -5- AO 72A (Rev.8/82) be wasted in asking me to reconsider aspects of my September 13 Memorandum Opinion or to clarify roles or responsibilities associated with the Compliance Remedy. Thats my rulin. If any party perceives error, that party should get its best hold and go to the Eighth Circuit. IT IS THEREFORE ORDERED that Joshuas Supplement to their Substituted Motion for Reconsideration be and it is hereby DENIED. IT IS FURTHER ORDERED that Section VI.D. of the Memorandum Opinion is modified to read as set forth, supra, at 4. DATED this day of October, 2002. UNITED STATES DISTRICT JUl/gE THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 AND/OR 79^) FRCP ON 10 I II [CZ- by -6- AO72A (Rev.8/82)& RECEIVED FILES L C3irvi OOl OCT 2 9 2002 OFFICE OF DESEGREGATION MONITORING IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION OCT 2 5 2Q02 JAMESW. W By----------- CLERK EP CLEF^ LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. LET AL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KATHERINE KNIGHT, ET AL INTERVENORS MOTION FOR HEARING REGARDING RELEVANCE OF 28 U.S.C. 455 TO THE PRESENT PROCEEDINGS The Joshua Intervenors respectfully move the Court to set a hearing for the purpose of determining whether 28 U.S.C. 455 has any relevance to the present proceedings. The Joshua Intervenors respectfully submit that 28 U.S.C. 455 states: (a) Any justice, judge, or magistrate [magistrate judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questions. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judg eor such lawyer has been a material witness concerning it
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or -1-expressed an opinion concerning the merits of the particular case in controversy
(d) For the purpose of this section the following words or phrases shallhave the meaning indicated: (1) proceeding includes pretrial, trial, appellate review, or other stages of litigation
In reference to 28 U.S.C. 455(b)(2), the Court is required to disqualify itself "where in private practice he served as a lawyer in the matter in controversy . . Undersigned counsel are informed that the Honorable District Court, while in private practice, appeared in 833 F.2dll3 (8"' Cir. 1987) in re: Little Rock School District vs. Pulaski County Special School District. No. 1.. Nos. 87-2150 and 87-2363, before the United States Court of Appeals for the Eighth Circuit. The cited Opinion addressed the issue of whether Judge Henry Woods should be disqualified. The disqualification issues had been raised by several of the parties including, notably, the Board of Education of the Little Rock School District. See attached Opinion, Exhibit A. The Court of Appeals determined that errors of procedure took place but we do not agree that it is reasonable to infer partiality or bias on the part the able and experienced district judge. The Court of Appeals apparently upheld the arguments of his honor which were made while His Honor was in private practice. The Court of Appeals did not explain its reasons in that Opinion but did so in 839 F.2d 1296, 1299. The disqualification issues, which were presented by His Honor while in private practice, were addressed in a lengthy Opinion on pages 1301, 1302 and 1303. The Court of Appeals, in that same Opinion, also addressed many of the issues which are raised or could have been raised in the present proceedings including compensatory programs in the LRSD, 839 F.2d 1306, magnet schools, 839 F.2d 1309, and teacher assignments in LRSD, 839 F.2d 1296. -2-The Court , in writing its Opinion dated September 13, 2002. included virtually all the citations from the Court of Appeals (see Exhibit B) hereto but did not refer to, mention or address these two important Opinions in which the Court, participated as a trial attorney in private practice. Plaintiffs counsel have sought to obtain the briefs which were filed with respect to Nos. 87-2150 and 87-2363 by His Honor, while in private practice, and any other briefs or activity which address that subject and have been unable to do so in a timely fashion. Their own records are incomplete regarding those filings. Request has been made of the Clerk of the Court of Appeals, however, to retrieve such briefs of all the parties regarding the two cited cases and are informed by the Clerk of that Court that he will retrieve the file. See Exhibit C. The Joshua Intervenors request that the Court convene an evidentiary hearing for the purpose of exploring the role the Court had, if any, while in private practice with respect to the subject case. In this respect, counsel having just learned this information, also notes that the Court has employed as a law clerk of the Courts staff one of the original lawyers who filed the instant case, Ms. Janet Pulliam. Counsel also note that at least one of Joshua counsel is a friend of Ms. Pulliam. Ms. Pulliam and her associates, however, are listed as counsel of record in at least these appellate citations
775 F.2d 404, 407
and959 F.2d 716. She was in association with Phil Kaplan and other counsel \.yy833 F.2d 112 where Mr. Kaplans name appears before the Honorable William R. Wilson, Jr. and she was in association with Mr. Kaplan in 839 F.2d 1296. This is confirmed by the fee application of counsel for the LRSD which went to the Court of Appeals in 1992. See Exhibit D. The Joshua Intervenors believe that 28 US.C. 455 issues are raised which should be developed at a hearing. Counsel are not moving for the Court to recuse at this time
however they would like to have an opportunity to review the proceedings that are set forth above and any other -J- writings to which the Court was privy, while in private practice, between himself and his client, Judge Woods. In that way, the Coun and the parties would be in a better position to address the applicability of 28 U.S.C. 455. FURTHERMORE, the Joshua Intervenors respectfully further pray that at such hearing the Court 1) inform counsel whether the present assignment of this case to this Court considered His Honors earlier role in the case while in private practice, in the light of 28 U.S.C. 455(b)(2)
2) the basis for the Courts conclusion that it did not have a duty to recuse pursuant to 28 U.S.C. 455 (b)(2)
and 3) request that the Court, if possible, make available to counsel copies of all briefs which His Honor has filed in this case while in private practice. Respectfully submitted. A i / I !(>/ -7^ i- Robert Pressman, Mass Bar No. 405^00 22 Locust Avenue Lexington, MA 02421 (781) 862-1955 John W, Walker, AR Bar No. 64046 JOHN W. WALKER. P.A. 1723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501)374-4187 (Fax) \ Rickey HicksAT^^BarNo. 89235 Attorney at Law Evergreen Place 1100 North University, Suite 240 Little Rock, Arkansas 72207 (501) 663-9900 -4-CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing h^been sent-i prepaid to the following counsel of record, on this/S^day of ^'and U.S. Mail, postage 2002
Mr. Christopher Heller FRIDAY, ELDREDGE & CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Sam Jones WRIGHT, LINDSEY & JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock. Arkansas 72201 Mr. Steve Jones JACK, LYON & JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Richard Roachell ROACHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock. Arkansas 72222-7388 // / Jkn W. Walker -5- In re LI'ITLE HOCK SCHOOL DISTHKT, Petitioner. LITl'LE HOCK SCHOOL DISTRICT, Appellant, PULASKI COUNTY SPECIAI. SCHOOL DISTRICT NO. 1, Appellee. Nos. 87-2160, 87-23G3. United States Court of Appeals, Eighth Circuit. Submitted Nov. 3, 1987. Decided Nov. 6, 1987. Supplemental Opinion Filed Feb. 9. 1988. Litigation was brought involving election for school board jwsitions. The United States District Court for the Eastern Dis- trict of Arkansas, Henry Woods, J., directed elections for three school board positions and appeal was filed and petition for writ of mandate was filed asking for disqualification of district court judge. The Court of Appeals, Arnold, Circuit Judge, held that: (I) fact that lawyer with whom trial judge once practiced appeared at one time in another case consolidated with pending case did not require district court judges disqualification, and (2) errors of procedure in proceeding did not give rise to reasonable inference of partiality or bias so as to require disqualification of district court judge. Ordered accordingly. 1. Judges =46 Fact that lawyer with whom district court judge once practiced appeared at one time for amicus curiae in case consolidated with and later severed from pending case did not warrant disqualification of district court judge
consolidated case was closed case, or at most, dormant, when it was consolidated and such fleeting and tenuous connection did not require recusal. 28 U.S. C.A, 455(a). (b)(2). 1. The Hon. Henry WoikIs, United States District 833 FEUBKAL REPORTER, 2(1 SERIES 113 2. Judges *^=49(1) Procedural errors which occurred in litigation involving school board election did not give rise to reasonable inference of partiality or bias so as to require disqualification of district court judge. 28 U.S.C.A. 456(a). (b)(2). P.A. Hollingsworth, Little Rock, Ark., for appellant. William R. Wilson, Jr., Little Rock, Ark., for Judge Woods in mandamus. Phil Kaplan. Little Rock, Ark., for Little Hock School Dist. Sam Perroni, Little Rock, Ark., for Rayburn. Phillip Lyon, Chicago, III., for North Little Rock. Before HEANEY, ARNOLD, and WOLLMAN, Circuit Judges. ARNOLD, Circuit Judge. The two proceedings captioned above, together with a number of appeals raising related issues, were argued before us on November 3, 1987, in Little Rock, Arkansas. Two of the many important issues presented deserve immediate answers: (1) Shall the school-board election now scheduled for December 8, 1987, in the Little Rock School District (LRSD), be allowed to take place? (2) Who shall preside over the District Court? No. 87-2363 is an appeal by LRSD from the District Courts * order of October 1, 1987, directing that elections for three school-board positions be held on December 8, 1987. This order is affirmed. We find no error of law, abuse of discretion, or clearly erroneous finding of fact in the District Courts order. It is our understanding that LRSD is free now to pursue actively the search for a new superintendent, and that it will be free to hire someone right after the election. No. 87-2150 is a petition for writ of mandamus filed by LRSD, asking us to Judge for the Eastern District of Arkansas. APPLICATION OF WOOD Clle as 633 r.2d 113 (SlliCIr. 1987) declare that Judge Woods should have disqualified himself. In the alternative, it is suggested that we simply direct that anotli- er judge be assigned to this case. In addition to the petition for mandamus, various appeals also include suggestions for the disqualification of the trial judge. We are not satisfied that such drastic relief is appropriate. [1] Two main grounds for recusal are urged. First, a lawyer with whom Judge Woods once practiced appeared at one time for an amicxcs curiae in a case called Clark V. Board of Educ. of tke Little Rock School Dist., No. LR-C-64-16B. The Ds- trict Court first consolidated Clark witli the instant case, then later severed it and returned it to the docket of another judge. Disqualification is sought under 28 U.S.C, 456(b)(2), which requires disqualification where in private practice ... a lawyer with whom [the judge] previously practiced law served during such association as a lawyer concerning the matter. We dis- agree with this argument. Clark was a closed case, or at most dormant, when it was consolidated with this one, and in any event it has now been severed. We do not think that such a fleeting and tenuous connection between the present case and the judges partner's activities while in practice years ago, was intended by Congress to require recusal. [2] In addition, the parties seeking disqualification assert that because of certain procedural improprieties the judges impartiality might reasonably be questioned. 28 U.S.C. 455(a). We agree that errors of procedure took place, but we du not agree that it is reasonable to infer partiality or bias on the part of the able and experienced District Judge. He has performed with diligence in circumstances that We decline to re- are anytJiing but easy. move him from the case. Another opinion will be filed in due course further explaining our reasons for the conclusions expressed today with re- spect to the election and disqualification matters, and addressing as well the other questions raised in these cases. The judgment in No. 87-2363 is affirmed The petition for writ of mandamus in No. 87-2160 is denied. We direct that our man dates in these two cases issue forthwith It is so ordered. w fo Bkoh1>HW$WH^ In re Application of I.niry A. WOOD to Appear Before the Grand Jury (Mise. 85-L-02). |J4 Appeal of UNITED STATES of America. No. 8C-1719. United Slates Court of Appeals, Eighth Circuit. Submitted March 10, 1987. Decided Nov. 12, 1987. Former conspiracy defendant, who wt acquitted, brought application to make inc vidual presentation to grand jury concer ing allegations of perjury by FBI agent. United States Attorney presented alleg tions to grand jury, which declined to tai action. Applicant then filed petition alle ing matter bad not been fairly present* and again requesting permission to appe before grand jury. The United States D trict Court, District of Nebraska. Warn K. Urbom, J., issued order to United Stal Attorney of District to make re-preseiv lion of matter, or applicants petition wot be granted. The United States appeah The Court of Appeals, Heaney, Circ Judge, held that: (1) District Courts orc was proper exercise of supervisory pow and (2) order did not violate separation powers. Affirmed. Fagg, Circuit Judge, dissented w opinion.921 F.2d 1371 (1990) 949F.2d253 (1991) 56 F.3d 904 (1995) 148 F.3d 956 (1998) 243 F.2d 361 (1957) .369 F.2d661 (1966) 426F.2d 1035 (1970) 449F.2d493 (1971) 465 F.2d 1044 (1972) 705 F.2d 265 (1983) 778 F.2d 404 (1985) 971 F.2d 160 (1992) 131 F.3d 1255 (1997) 83 F.3d 1013 (1996) 112 F.3d 953 (1997) 'I,ii d 1 John W. WAlker, RA. Attorney At Law 1723 Broadway Little Rock, Arkansas 72206 Telephone (5011 374-3758 FAX (501) 374-4187 JOHN W. WALKER SHAWN CHILDS Via Facsimile - 314-244-2780 OF COUNSEL ROBERT McHENRY. PA-DONNA J. McHENRY 3210 Henderson Road Little Rock. Ask.ans.as 72210 Phone: (501) 372-3425 Fax (501) 372-3428 EM.AIL: mchen17d@swbeU.net October 22, 2002 Nir. Michael Gans United States Court of Appeals for the Eighth Circuit Thomas F. Eagleton Court House Room 24.329 111 South 10 Street St. Louis, MO 63102 Re: Case No. 84-1543 Little Rock School District v. Joshua
Case No. 84-1620 Little Rock School District
Case Nos. 87-2150 and 87-2363 - Little Rock School District v. Pulaski County Special School Dear Mr. Gans: Would you kindly search your files and advise whether you have in your archives the briefs of the Appellants and the Appellees regarding the above captioned cases. I am particularly interested in whether there were briefs filed on behalf of the District Court in the above captioned cases. Thank you for your attention to this matter. Sincerely, /John W. Walker TWW:js ccki (L 959 PWEK^UJWPORTER, 2d SERIES LITTLE ROCK SCHOOL DISTRICT, Appellant, 6 F- LnTLB ROCK SCHOOL DIS-V. v. PUl.ASKI CVY. SCHOOL l>. Cllca9.59 r?.{l 716 (flIhClv. 1992) Hudsum Miltoll .Incksnn
borene Josh- ua
Lcslie Joshua
Wayne Joshua
SLacy Josliun
Kntlvevinc JUiight
717 Sara MatthcHs: Bcclry McKinney
nev- rick Miles
Janice Miles
John M. I Anne Mitchell
Bob Moore
Pat Gee
Pal Rayburn
Mary J. Gage
North IJtIh Rock Classroom Teachers Associalion
Sora Malthev/s
Becky McKinney: DerPulaski Association Teachers
Little Rock of Ciassioom Teachers Association
Classroom Alexa Arm f' 3:
- sV rick Miles
Janice Miles
John M. Miles
NAACP
Joyce Person
Brian Taylor
Hilton Taylor
Paishsi Taylor
Miles
NAACP
.Foyce Person
Brian Taylor
Hilton Taylor: Parsha Taylor
Robert Willinghaiu
ham, Intervenors, Tonya Willing- Robert IVillingliaiu
ham. Intervenors, Tonya Willing- FUI..A8IU COUN'IY Sl'ECMl. SCHOOL strong
Karlos Armstrong
Etl Ballin,, ton
Khayyam Do.vis
Janice Deni
John Harrison
Alvin Hudson
Tali) hlSTUlCl* ff 1
North LitUe Kock School District
Leon Bornes
Sheryl Dituu
Mac Faulkner
Ktchnrd A. (lld- Hudson
Milton Jackson
LoieneJosh- dings
man
Marianne (Josser
Shirley bowcry: Doii Ilind- Boh Lyon
ua
Leslie Wayne Joshua
Joshua
Stacy Joshua: Katherine Knijlif
Sara Matthews
Becky McKinney
Der- rick Miles
Janice Miles
John M. Miles
NAACP
Joyce Person
Brian Taylor
Hilton Taylor
Parsha Taylw: Robert Willingham
Tonya Willing, ham, Intervenors, PULASKI COUNTY SPECIAL SCHOOL DISTRICT #1
North Little Rod School District
Leon Barnes
Sheryl Dunn
Mac Faulkner
Richard A. Gid- dings
Marianne Gosser
Don Hind- man
Shirley Lowery
Bob Lyon: George A. McCrary
Bob Moore
Steve Morley
Buddy Raines
David Sain: Bob SteniJer
Dale Ward
John AVard
hidy Wear
Grainger Williams, Dcfen- <lants, I?' George A. McCini j
Boh Moore
Steve Morley
Buddy Kaines
David Sain
PULASKI COUNTY SPECIAL SCHOOL DISTRICT #1
North Little Rock School District
Leon Barnes
Sheryl Dunn
Mac Faulkner
Richard A. Giddings
Marianne Gosser
Don Hind- iiinn
Shirley i^ouery
Bob Lyon
George A. McCrary
Bob Moore
Steve Morley: Buddy Raines
David Sahi
Dob Slender
Dale Ward
John Ward
Judy Wear
Grainger Williams, Dcfen- dsiils, Bob Slender
Dale Ward
John Ward
Judy Wear
Grainger Williams, Delen- dnnte, Philip E. Kaptnu
Janet Fiilliaiu
John Bilhciiuer
P.A. Iloiliugsworth. Appelicc.s. Nos. Dl-IG.30, iind 91-7,402. United States Court of Appeals, Eighth Circuit. Submitted J.an. 7, 1992. Decided March 23, .1992. Philip E. Kaplan
.Fanet Pulliam
John Bilheimer
P.A. Hollingsworth, Appellee.s. LOTLE RfJCK SCHOOL DISTRICT. Appellee, Anne Mitchell
Bob Moore: Pat G-e
Pjl Rayburn
Mary J. Gage
Morth Lillli Roch Classroom Teachers Associalion: Pulaski Teachers
Association of Little Rock Teachers Association
r Classroom Classroom Alexa Arm- strong
Karlos Armstrong
Ed Bullington
Khayyam Davis
Janice Beni: John Harrison
Alvin Hudson
Talia > I !? Philip E. Kaplan
Janet FuUiaiuj John Bilheiinev
P.A. Holliug.swortli, Appellants. LITTLE ROCK StHIOOL DISTRICT. Appeliniit, Anne Mitchell
Bob Moore
Pat Gee
Pat Rayburn
Mary J. Gage
North Little Rock Classroom Teachers Association
Iaw firm which represented school district in school desegregation case applied for attorney fees for services rendevod. The United States District Court for the. Eastern District of Arkansas, Susan Webber WiiRht, .1., foiijxl that disUict was a prevailijig party, that the parties had agreed that district would prosecute fee petitions at firm's pievailirig rates, that district would pay difference ijetwoeii their billed rates and proceetls of any attorneys fees award, and that the jiavties had modified their agreement U) provide that group and firm would split evenly any award made by theamrt. Difjlrlct appealed. The Court of Appeals held thak (1) amount of Pulnskt Teachers
Association Little of Rock . Teachers Association
Classi'ooiu Classroom Alexa Arm- strong
Karlos Armstrong
Etl Biilling- too
Khayyam Davis
Janice Dent
John Harrison
Alvin Hudson
Talia Hudson
Milton Jackson
Lorene Josh- ua
Wayne Leslie Joshua
Joshua
Stacy Jofdnia
Katherine Knight
award was neilher clearly erroneous abuse of discrcUou
(2) findiuK that nor con- h-acl existed between district
ainl firm and conlenU of the coutrncl
was suppoi l-ed by the evidence
and (3) district was not es- topped to defend siRainst contention that superintendent had agreed to firm's proposal for 50/50 split in award of attorneys' fees. J Affirmed. izKlicbii CDRECEIVED OCT 3 1 2002 OFFICE OF DESEGREGATION MONITORING UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. MRS. LORENE JOSHUA, et al. KATHERINE KNIGHT, et al. 1. u.s: districtdourt EASTERN district ARKANSAS OCT 2 9 2002 JAMES VZ Plainluf Defendants Intervenors Intervenors ORDER DENYING MOTION FOR HEARING REGARDING RELEVANCE OF 28 U.S.C. 455 TO THE PRESENT PROCEEDINGS On July 22 - July 24,2002, an evidentiary hearing was held in this case on the issues raised by Little Rock School Districts motion for unitary status. 2. On September 13, 2002, a memorandum opinion was entered which ruled upon the issue of unitary status. 3. Last Friday, October 25, 2002, Joshua Intervenors filed a Motion for Hearing Regarding Relevance of 28 U.S.C. 455 to the Present Proceedings, raising two issues: a. Whether I should disqualify because approximately fifteen years ago I represented The Honorable Henry Woods, the presiding judge in this case at that time. This representation was in connection with a mandamus petition by the LRSD and Joshua Intervenors (the latter represented by Mr. Walker, among others)
6 9 5b. Ms. Janet Pulliam, former counsel of record for a party in this case, joined my staff on September 26, 2002, as a law clerk (she came aboard nearly two weeks after the September 13 Memorandum Opinion). 4. I will deal with the issue involving Ms. Pulliam first. From the outset, Ms. Pulliam has been kept completely separate from this case, and will be in the future. Attached as Exhibits A and B to this order are interoffice memos dealing with this issue. I believe they resolve this question. SERVING AS A LAWYER IN THE MATTER IN CONTROVERSY 5. I turn now to my representation of Judge Woods in the 1987 mandamus proceeding. LRSD and Joshua Intervenors filed a petition for a writ of mandamus, asking that the Eighth Circuit disqualify Judge Woods. LRSD v. PCSSD, 839F.2dl296, 1301 (S' Cir. 1988). I entered the case, at that time, for the limited purpose of representing Judge Woods before the Eighth Circuit in connection with the request that he be disqualified. Crucially important is the fact that the mandamus issues had nothing to do with the merits of the underlying case. The mandamus was argued orally before the Eighth Circuit (sitting in Little Rock) on November 3,1987, and, two days later, the Court handed down its decision, denying the request for mandamus. The November 5 opinion, LRSD v. PCSSD, 833 F.2d 112,113 (8* Cir. 1987), was very brief. and included this language: Another opinion will be filed in due course further explaining our reasons for the conclusions expressed today with respect to the election and disqualification matters, and addressing as well the other questions raised in these cases. I was shown as counsel of record for Judge Woods in mandamus in the November 5 decision. Thereafter, I had no further involvement. 26. The Eighth Circuit handed down a supplemental opinion on February 9,1988, LRSD V. PCSSD, 839 F.2d 1296 (8* Cir. 1988). In this opinion, the Court explained, in more detail, why the petition for mandamus had been denied in the November 5 opinion. I am not shown as counsel of record in the February 9 opinion. 7. Actually, the answer to Intervenors question appears in LRSD v. PCSSD, 833 F.2d 112. The court stated: [A] lawyer with whom Judge Woods once practiced appeared at one time for an amicus curiae in a case called Clarkv. BoardofEduc. ofthe Little Rock School Dist., No. LR-C-64-155. The District Court first consolidated Clark with the instant case, then later severed it and returned it to the docket of another judge. Disqualification is sought under 28 U.S.C. 455 (b)(2), which requires disqualification where in private practice...a lawyer with whom [the judge] previously practiced law served during such association as a lawyer concerning the matter. We disagree with this argument. Clark was a closed case , or at most dormant, when it was consolidated with this one, and in any event it has now been severed. We do not think that such a fleeting and tenuous connection between the present case and the judges partners activities while in practice years ago, was intended by Congress to require recusal. Id. at 113. Likewise, my appearance fifteen years ago was brief (transitory). I represented none of the parties, and, as stated above, the narrow recusal issue that I addressed on behalf of Judge Woods had nothing to do with the merits of the underlying case. 8. In United States v. DeTemple, 162 F.3d 279 (4* Cir. 1998), the Court held that the recusal of a district judge was not required when the judge, as a lawyer, represented a creditor of the defendant (in a bankruptcy fraud case) because the creditors debt played no part in the defense or prosecution of the case. In other words, the key here is the phrase the matter in controversy. In United States v. Cleveland, 1997 WL 222533, *11 (E.D. La. May 5, 1997), the Court stated: In this Courts view, a former representation should trigger the matter in controversy requirement if the issues with which it dealt are put in issue in the 3subsequent case in the sense that they need to be resolved by the judge who is presiding over the subsequent case. If the judge need not resolve an issue that either she or her former partners were involved in, then there is no appearance of impartiality and the purpose of Section 455(b)(2) is satisfied. In reaching this conclusion, the district judge in Louisiana cited LRSD v. PCSSD, 839 F.2d 1296. WAIVER & ESTOPPEL 9. On top of the fact that my appearance in the case was brief and did not involve, in any way, any of the issues pending before me, a motion to disqualify me under section 455 would not be timely. On January 3,1984, the Joshua Intervenors, represented by Mr. John W. Walker and Mr. Wiley A. Branton, Jr., filed a Petition to Intervene (docket no. 452). On April 23, 1984, Judge Woods entered an Order (docket no. 470) denying Joshuas Petition to Intervene. On May 23,1984, the Eighth Circuit entered an Order (docket no. 565) directing Judge Woods to grant Joshua permission to intervene as parties in this case. Thus, Mr. Walker was counsel of record for Joshua before, during, and after the 1987 mandamus proceeding in which I appeared as counsel for Judge Woods. As the Ninth Circuit pointed out in E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9* Cir. 1992): It is true that under section 455 a judge may have an obligation to recuse himself or herself without a motion from one of the parties
it is self-enforcing on the part of the judge. However, it does not necessarily follow that a party having information that raises a possible ground for disqualification can wait until after an unfavorable judgment before bringing the information to the courts attention. It is well established in this circuit that a recusal motion must be made in a timely fashion. The absence of such a requirement would result in... a heightened risk that litigants would use recusal motions for strategic purposes." While there is no per se rule that recusal motions must be made at a fixed point in order to be timely,... such motions should be filed with reasonable promptness after the ground for such a motion is ascertained. (Emphasis added.) (Citations omitted.) 410. On January 3, 2002, this case was assigned to me by random selection (docket no. 3570). At that time, Mr. Walker knew full well that, thirteen years earlier, I had represented Judge Woods in the mandamus proceeding that Mr. Walker, himself, helped initiate in an attempt to have Judge Woods removed from this case. See LRSD v. PCSSD, 839 F.2d at 1301. Yet, it was only after my September 13,2002 Memorandum Opinion ruling against Joshua on 5 of the 6 asserted grounds for denying unitary status that Joshuas lawyers chose to file the motion for a section 455 hearing. If there ever was a case of waiver and estoppel, this is it. I hasten to point out again. however, that even if Joshua had not elected to take a wait and see approach to deciding whether to file their section 455 motion, there would be no reason for me to recuse since I have never served as lawyer in the matter in controversy." 11. In Joshuas section 455 motion, there appears this curious language: The Court, in writing its Opinion dated September 13, 2002, included virtually all the citations from the Court of Appeals. . .hereto but did not refer to, mention or address these two important Opinions in which the Court, participated as a trial attorney in private practice. Motion at 3. One reading the above quoted language with a jaundiced eye might take it to suggest that I attempted to hide my 1987 representation of Judge Woods in the mandamus proceeding. I described the language as curious since, as noted, Mr. Walker was counsel of record for Joshua at the time and one of the moving parties who filed the petition for writ of mandamus. See LRSD v. PCSSD, 839 F.2d at 1301. Thus, it is clear beyond peradventure that Mr. Walker knew of my being involved in this case on behalf of Judge Woods. For Joshuas benefit --1 will explain my reason for not citing these cases - a reason much less sinister than Joshua may be suggesting: they had no bearing on the unitary status issues that were decided in my September 13, 2002 Memorandum Opinion. 512. CONCLUSION Since this Order fully sets forth my involvement in, and my knowledge of, the matters raised in Joshuas section 455 motion, there is no reason for a hearing, i.e., there is nothing material I could add to the above. And, in my opinion, I have fully answered the concerns of Joshua. 13. If and when Joshuas counsel obtain copies of the briefs I filed in connection with the mandamus issue,' I will be willing to look at the issue again if, and only if, these briefs reveal that my participation in the case was significantly different from my clear recollection. At that time. however, Joshuas counsel would be required to convince me that raising the question at this late date, after losing, was not for strategic purposes. 14. Joshuas pleading raises the question of the relevance of 28 U.S.C. 455 to the present proceedings. Answer: none. SUGGESTION 15. It is obvious that Joshuas counsel feel aggrieved by my September 13, 2002 Memorandum Opinion. I again commend the Eighth Circuit Court of Appeals to them. That Court has had a world of experience in hearing disappointed suitors. In fact, this is its forte. IT IS SO ORDERED this day of October, 2002. UN: STATES DISTRICT JUDG THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITJ AND/OR 79(a) P ON 'My file has long since been destroyed. 6 BILL V L Wl 'ILSON JUDGE TO: DATE: RE: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS 600 W. CAPITOL, ROOM 423 LITTLE ROCK, ARKANSAS 72201-3325 (501) 604-5140 Facsimile (501) 604-5149 MEMORANDUM All Hands at 423 U. S. Courthouse September 30, 2002 LRSD case Janet Pullium was, at one time, one of the attorneys for the Little Rock School District. So, she will not be involved in this case in any way whatsoever, directly or indirectly. EXHIBIT AKay Holt 09/25/2002 11:13AM To: Mary Johnson/ARED/08/USCOURTS@USCOURTS, Christa Newburg/ARED/08/USCOURTS@USCOURTS, Valerie Glover/ARED/08/USCOURTS@USCOURTS, Christina Conrad/ARED/08/USCOURTS@USCOURTS cc: Subject: LRSD case Per Judge. When Janet comes on board weve got to put a Chinese wall between her and the LRSD case. She was involved in it at some point. EXHIBIT B I IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS
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